Miller v. Miller

210 S.E.2d 438 (1974) 24 N.C. App. 319

Ila MILLER
v.
Billy Ray MILLER and Frances Miller.

No. 7410DC512.

Court of Appeals of North Carolina.

December 18, 1974.

L. Phillip Covington, Garner, for plaintiff-appellant.

Clyde A. Douglass, II, Raleigh, for defendants-appellees.

BROCK, Chief Judge.

Rule 55(d) of the North Carolina Rules of Civil Procedure provides that

"[f]or good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with rule 60(b)." (Emphasis added.)

It is well settled that an entry of default is to be distinguished from a judgment by default. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735. An entry of default is made by the clerk of court and has been characterized as a "ministerial duty." See 2 McIntosh, N.C. Practice 2d, § 1668 (Supp.1970). Courts generally favor giving every litigant a fair opportunity to present his side of a disputed controversy.

We have repeatedly held that a determination of the existence of good cause under Rule 55(d) rests in the sound discretion of the trial judge. His ruling will not be disturbed unless a clear abuse of discretion is shown. Whaley v. Rhodes, supra; Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330; Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794. We find no abuse of discretion in the ruling questioned by plaintiff.

Affirmed.

PARKER and MARTIN, JJ., concur.