Coulbourn Lumber Co. v. Grizzard

277 S.E.2d 95 (1981)

COULBOURN LUMBER COMPANY
v.
Wilbur Alonzo GRIZZARD and Jean Grizzard, t/a Star Glass Company & Bertie Glass Company.

No. 806DC795.

Court of Appeals of North Carolina.

April 21, 1981.

Pritchett, Cooke & Burch by W. L. Cooke, Windsor, for plaintiff-appellee.

Moore & Moore by Milton E. Moore, Williamston, for defendants-appellants.

WELLS, Judge.

Although defendants excepted to and assigned as error that entry of judgment by the trial judge, they have not argued that exception in their brief and it is therefore taken as abandoned. See Rule 28(b)(3), Rules of Appellate Procedure. The only question presented for our review is whether the trial judge committed prejudicial error in denying defendants' motion to set aside entry of default by the clerk.

Pursuant to the provisions of G.S. 1A-1, Rule 55(d), the trial court may set aside an entry of default for good cause shown. A motion to set aside an entry of default is addressed to the sound discretion of the trial judge and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of that discretion. Britt v. Georgia-Pacific Corp., 46 N.C.App. 107, 108, 264 S.E.2d 395, 397 (1980); Privette v. Privette, 30 N.C.App. 41, 44, 226 S.E.2d 188, 190 (1976); Acceptance Corp. v. Samuels, 11 N.C.App. 504, 510-11, 181 S.E.2d 794, 798 (1971). It appears from the record that a period of over seven and one-half months elapsed from the time defendants' untimely and unserved application for extension of time to file their answer was filed and the date defendants moved to set aside the entry of default, and that by such date, the case was calendared for trial. Under such circumstances, we believe the trial judge did not abuse his discretion in reaching the conclusion that defendants had not shown good cause for setting aside the entry of default.

Additionally, we note that in order for defendants to obtain relief here, they must show that the asserted error by the trial court was material and prejudicial. G.S. 1A-1, Rule 61, Rules of Civil Procedure; Trust Co. v. Carr, 10 N.C.App. 610, 618, 179 S.E.2d 838, 843, modified, 279 N.C. 539, 184 S.E.2d 268 (1971). We find no such prejudice and therefore decline to disturb the action of the court below. The entry of default by the clerk served no further purpose than moving this case for trial to the civil issue docket. The record discloses that at trial plaintiff put on evidence as to the existence of the contract, its breach by defendants, and damages ensuing to plaintiff as a result of the breach. Defendants' evidence did not dispute the existence of the contract, but did dispute its breach and the amount of damages to plaintiff. The trial judge found as fact that the defendants entered into a contract with plaintiff's assignor, and that plaintiff was damaged by the negligent and defective manner in which defendants performed their contractual duties. All of these findings were supported by competent and material evidence. It thus appears that defendants have had a trial on the merits of the cause of action stated in plaintiff's complaint. Under such circumstances, we fail to see any prejudice to defendants from the trial court's failure to set aside the entry of default by the clerk.

Defendants argue that the decision of this Court in Roland v. Motor Lines, 32 N.C.App. 288, 231 S.E.2d 685 (1977) compels us to give them another day in court. Roland is clearly distinguishable, for in that case a default judgment was entered by the clerk, and defendants had no opportunity to defend on the merits.

Affirmed.

VAUGHN and BECTON, JJ., concur.