Pryse v. Strickland Lumber & Building Supply, Inc. , 66 N.C. App. 361 ( 1984 )

311 S.E.2d 598 (1984)

Robert G. PRYSE, Sr.
v.
STRICKLAND LUMBER AND BUILDING SUPPLY, INC. and Johns-Manville Sales Corporation.

No. 8311DC1.

Court of Appeals of North Carolina.

February 7, 1984.

Mast, Tew, Armstrong & Morris by L. Lamar Armstrong, Jr. and George B. Mast, Smithfield, for defendants-appellants.

L. Austin Stevens, Smithfield, for plaintiff-appellee.

ARNOLD, Judge.

Defendant Strickland first contends that the trial court erred in ordering entry of default and default judgment against Strickland, in that its negligence in failing to file an answer to plaintiff's complaint was excusable. Strickland argues that it was justified in taking no action, since it reasonably relied on defendant Johns-Manville to defend the suit.

A determination of the existence of good cause for setting aside an entry of default under Rule 55(d) rests in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal unless a clear abuse of discretion is shown. Miller v. Miller, 24 N.C.App. 319, 210 S.E.2d 438 (1974). After being served with a summons and complaint, Strickland, on the advice of a Johns-Manville representative, mailed the papers to that company's Atlanta office. There is no evidence that he did anything further. We are not persuaded that the trial court abused its discretion in finding that Strickland's neglect in "failing to employ counsel or to follow up the alleged mailing of the Summons and Complaint to Johns-Manville Sales Corporation constitutes inexcusable neglect."

Strickland next urges that when plaintiff filed a voluntary dismissal against Johns-Manville he in effect dismissed against Strickland as well, since plaintiff's basis for recovery had been his allegation that the two defendants were jointly and severally liable. Rule 41 of the Rules of Civil Procedure allows a plaintiff to dismiss a claim without order of the court, subject

only to certain situations not applicable to the case at bar. Moreover, it is well established that where negligence is joint and several, an injured party may choose to sue either of the joint tortfeasors separately. Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833 (1958).

In the case at bar, plaintiff was initially able to proceed against either defendant. When his default judgment against Johns-Manville was set aside because of excusable neglect, he simply elected to act against Strickland. This decision in no way prevents Strickland from exercising his right to sue Johns-Manville for reimbursement if, in fact, it is ordered to compensate plaintiff. We, therefore, reject plaintiff's contention and the order of the trial court is

Affirmed.

JOHNSON and PHILLIPS, JJ., concur.