(concurring and dissenting):
American moved to set aside Goodson’s judgment apparently under equity principles and under Rules 591 and 60 of the South Carolina Rules of Civil Procedure based on: (1) its *405failure to receive notice of the hearing in accordance with Rule 55(b)(1); (2) mistake, inadvertence and/or excusable neglect under Rule 60(b)(1); and (3) excessiveness of the jury-verdict.
I.
American argues the trial court erred as a matter of law in holding Goodson’s judgment was not a default judgment. Moreover, it argues that because the judgment is a default judgment, it was entitled to three days’ notice of Goodson’s application for the judgment and his failure to give such notice makes the judgment void and it should be set aside under Rule 60(b)(4).
It is clear default may result from delicts other than failure to file an answer. In fact, Rule 55(a) provides for the entry of default when a party fails to “otherwise defend.” There is some disagreement among the federal courts whether under similar circumstances a defendant is entitled to default status as opposed to the plaintiff being entitled to proceed to obtain a judgment based on a trial on the merits in the defendant’s absence.2 The logical basis for this disagreement seems to be that a defendant who files an answer, but fails to appear or defend thereafter, should not be penalized more severely than a defendant who does absolutely nothing. By way of illustration, if American had done nothing in this case, Goodson’s recovery of actual damages under Rule 54(c) could not have exceeded the amount stated in his complaint which was $8,820.00.
Although there appears to be authority for the proposition that a failure to appear at trial after answering the complaint should entitle a defendant to default status, the majority view appears to permit the plaintiff to proceed to judgment on the merits.3 See 11A Words and Phrases “Default” 272-274 (1971); Coulas v. Smith, 96 Ariz. 325, 395 P. (2d) 527 (1964); Tartaglia v. Del Papa, 48 F.R.D. 292 (E.D.Pa. *4061969). I, therefore, agree with the majority that the judgment at hand was not a default judgment. Thus, Rule 55 is inapplicable.
In Sijon v. Green, our Supreme Court held:
[W]here a judgment roll does not contain evidence that a party-litigant received notice of the hearing or trial and a judgment is rendered, the absent party, upon motion, is entitled to a judicial determination of whether he received proper notice. If it be determined that the party received such notice, the judgment remains; if not, the absent party is entitled to a new trial.
289 S. C. at 128, 345 S. E. (2d) at 248. In the case at hand, the trial court made no finding whether American received notice of the hearing. In fact, he reasoned that any lack of notice was the fault of American since its agent Sharon O’Rear failed to list her address in the pleadings and American failed to keep abreast of the progress of the trial roster to determine when the case would come to trial. The Sijon court did not have before it the question of whether the notice of hearing could be waived by the defendant. To that extent, the holding in Sijon is inapposite.
The record contains no showing why American did not list its address on its pleadings or keep abreast of the trial roster. Therefore, it has not sustained its burden of showing the trial judge abused his discretion in failing to find excusable neglect. Em-Co Metal Products, Inc. v. Great Atlantic & Pacific Tea Co., 280 S. C. 107, 311 S. E. (2d) 83 (Ct. App. 1984).
II.
Nevertheless, I am persuaded by American’s argument that the excessiveness of the verdict provides a basis for relief from judgment. Although Rule 60 provides no basis for setting aside a judgment on this ground, our Supreme Court has held that a judgment should be vacated on general principles of equity where the award is patently and greatly out of proportion to the wrongs alleged in the complaint. Renney v. Dobbs House, Inc., 275 S. C. 562, 274 S. E. (2d) 290 (1981); Williams by and through Williams v. Vereen, 284 S. C. 219, 325 S. E. (2d) 337 (Ct. App. 1985). In Renney, the *407appellant based his motion to vacate on S. C. Code Ann. Section 15-27-130 (1976).4 The Supreme Court, on its own motion, vacated the judgment on equitable grounds stating:
“Whether a defendant is or is not in default, it is incumbent upon the judge and/or the jury to make a judicial determination of the amount recoverable based on the proof.”
275 S. C. at 567, 274 S. E. (2d) at 293.
Here, Goodson itemized his actual damages in his complaint as amounting to $8,820.00.5 While we have no hint of why or how the jury awarded $34,000 in actual damages, it is implicit American’s non-appearance at trial had something to do with the amount of the verdict. I would hold the actual damages award is so patently out of proportion to the wrongs alleged in the complaint, that this court should do as our Supreme Court did in Renney, and reverse and remand the case for a new trial on actual damages only.
The majority cites Rule 54(c) as support for upholding the excessive actual damages award. I agree that in an ordinary non-default trial of a case, a party’s pleadings should not preclude relief for which the party is justly entitled. However, where as here, Goodson itemizes his actual damages, it is unduly prejudicial to American for the court and jury to award actual damages grossly in excess of those specified in the complaint. As to those damages, American had absolutely no notice Goodson was claiming them. See United States v. Hardy, 368 F. (2d) 191 (10th Cir. 1966) (party had no notice other party was claiming damages because no plain statement appeared in either pleadings or pretrial order). Goodson notes the law has always been that a party is entitled to fully recover all damages incurred, although not demanded in his complaint, citing former Code Section 15-35-70 and cases enumerated thereunder especially the case of Christopher v. Christopher, 18 S. C. 600 (1882). But attention is directed to the case of Straub v. Screven, 19 S. C. 445 (1883) which holds that where a complaint stated *408amounts due and credits allowed and demanded judgment for a certain sum, and the answer admitted the allegations, it was error for the trial judge to reduce the credits and give judgment for a larger sum. I would reverse and remand for a new trial on actual damages only.
I cannot discern American’s argument under Rule 59.
See 6 J. Moore, W. Taggert and J. Wicker, Moore’s Federal Practice Section 55.02[3], n. 12 (2d ed. 1987).
The question of whether a defendant received notice of the hearing at which he failed to appear is another issue. Failure of a defendant to receive such notice may give rise to right of new trial for the defendant. Sijon v. Green, 289 S. C. 126, 345 S. E. (2d) 246 (1986).
Repealed by Act 100, 1985 S. C. Acts 277. Now replaced by S.C.R.Civ.P. 60.
While not required, Rule 8(a) permits a plaintiff to demand a sum certain in money as actual damages.