Quaker Furniture House, Inc. v. Ball

228 S.E.2d 475 (1976) 31 N.C. App. 140

QUAKER FURNITURE HOUSE, INC.
v.
Emil BALL, Individually as general partner, and Spanish Inns Charlotte, Ltd., a North Carolina Limited Partnership.

No. 7625SC347.

Court of Appeals of North Carolina.

October 6, 1976.

Corne & Pitts by Larry W. Pitts, Newton, for plaintiff-appellant.

Craighill, Rendleman & Clarkson by Francis O. Clarkson, Jr., Charlotte, for defendants-appellees.

HEDRICK, Judge.

Plaintiff assigns as error the order of the trial court setting aside the default judgment. Plaintiff concedes that service of the answer was had upon it within the thirty-day period after service of the summons and complaint prescribed by G.S. 1A-1, Rule 12(a)(1), but argues that the portion of G.S. 1A-1, Rule 5(d) which provides, "All pleadings subsequent to the complaint shall be filed with the court," entitles it to a default judgment since the answer was not filed with the court until some thirty-five days after service of the summons and complaint. We do not agree.

Under G.S. 1A-1, Rule 55 a defendant's default can be entered only if he "has failed to plead or is otherwise subject to default," and a default judgment can be entered by the clerk only if the defendant has failed "to appear." We hold that service of the answer is both a "pleading" and an "appearance" for the purpose of Rule 55.

G.S. 1A-1, Rule 12(a)(1) provides in part: "[A] defendant shall serve his answer within 30 days after service of the summons and complaint upon him." (emphasis added). Rule 12(a)(1) requires only that the defendant serve his answer within thirty days. There is nothing in Rule 5(d) that requires the defendant to file his answer with the court within thirty days as well. Rule 5(d) does not provide any period in which the filing must take place.

Although the trial court has discretion under certain circumstances to set aside an entry of default under G.S. 1A-1, Rule 55(c) and a default judgment under G.S. 1A-1, Rule 60(b), we are of the opinion the trial court in setting aside the default judgment correctly concluded that since the defendants had served their answer on the plaintiff within thirty days after they had been served with the summons and complaint, the judgment had been "entered inadvertently and is void and of no legal effect." G.S. 1A-1, Rule 60(b)(4).

The order appealed from is

Affirmed.

MORRIS and ARNOLD, JJ., concur.