Paul v. Pool ( 1980 )

Thompson, J.,

concurring:

Although I agree with the result reached by the majority, as to the Rule 54(b) certification, I cannot agree that error occurred when the clerk entered Paul’s default for failure to appear, nor do I believe that the court thereafter was powerless to hear evidence and enter default judgment.

Paul, a defendant subject to derivative liability for the negligence of his codefendant, Bledsoe, must respond when served with process or face default procedures if the plaintiff elects to pursue them. Consequently, I would deem the default and default judgment to have been properly entered.

The crucial question is whether the default judgment was a final judgment for the purposes of certification under NRCP 54(b). Since the answer of the codefendant, Bledsoe, inures to the benefit of the defaulting defendant, Paul, the court retained the power to revise the default judgment should the pending defense of Bledsoe ultimately prove to be successful. Cf. Rogers v. Watkins, 525 S.W.2d 665 (Ark. 1975). Hence, the court lacked power to certify the default judgment as final. When a court improperly certifies an interlocutory order as final, such certification is without operative effect. Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068 (1979); Acha v. Beame, 570 F.2d 57 (2nd Cir. 1978).