Bartlett v. Harlow

PER CURIAM.

William L. Bartlett, Jr., appeals from a denial of a motion to set aside a default judgment in favor of Loyal C. Harlow.

Harlow filed suit against Bartlett on May 1, 1986. On July 11, 1986, the trial court entered a default judgment in favor of Harlow. Pursuant to Rule 55(c), A.R. Civ.P., Bartlett filed a timely motion to set aside the default judgment on July 23, 1986. On November 10, 1986, Harlow filed a response to that motion. On November 14, 1986, the trial court entered an order purporting to deny the motion. However, a motion filed under Rule 55 is deemed to have been denied after 90 days, pursuant to Rule 59.1, A.R.Civ.P. (as amended effective March 1, 1984). Thus, the motion to set aside the default judgment was deemed denied by operation of law on October 21, 1986. The 42-day period for filing an appeal began to run on the date the motion was deemed denied, i.e., October 21, 1986. See Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975), and Rule 4, A.R.App.P. Accordingly, the time for filing an appeal expired on December 2,1986. Bartlett did not file his notice of appeal until December 17, 1986. Therefore, this appeal is dismissed as untimely filed.

DISMISSED.

TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur.