Duncan v. Duncan

401 S.E.2d 398 (1991)

102 N.C. App. 107

Samuel W. DUNCAN, Petitioner, v. Treacy DUNCAN, Marvin Curtis, and Duncan Realty, Inc., Respondents.

No. 9030SC633.

Court of Appeals of North Carolina.

March 5, 1991.

*399 Hyler & Lopez, P.A. by George B. Hyler, Jr., and Robert J. Lopez, Asheville, for petitioner-appellee Samuel W. Duncan.

*400 Gerald R. Collins, Jr., Murphy, for respondent-appellant Marvin Curtis.

Coward, Sossomon, Hicks & Beck, P.A. by Orville D. Coward, Sylva, for respondent-appellant Treacy Duncan.

ORR, Judge.

Respondent puts forth several assignments of error contesting the validity of the trial court's order. However, for the reasons below, we conclude that the order entered by the trial court was not a final judgment but, instead, was an entry of default not subject to review here.

N.C.Gen.Stat. § 1A-1, Rule 55 (1990) provides:

(a) Entry.When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default. (b) Judgment.Judgment by default may be entered as follows: (1) By the Clerk. .... (2) By the Judge.In all other cases the party entitled to a judgment by default shall apply to the judge therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian ad litem or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the judge to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to take an investigation of any other matter, the judge may conduct such hearings or order such references as he deems necessary....

The official comment to Rule 55 states:

[W]hen in order to enter final judgment something further must be done after entry of default, e.g. when an account must be taken or a jury trial had on an issue of damages or any other, the judge orders that done which is necessary. Thus, there is no intermediate judgment by "default and inquiry," but an entry of default in all cases and a final judgment by default entered only after everything required to its entry has been done.

Where a trial court ordered a trial on the issue of damages in its "judgment by default," this Court stated that the trial court "clearly intended only entry of default." Stone v. Martin, 69 N.C.App. 650, 652, 318 S.E.2d 108, 110 (1984). In Stone we stated:

Generally, there is first an interlocutory entry of default, and then a final judgment by default only after the requisites to it entry, including a jury trial on damages, have occurred. See G.S. 1A-1, Rule 55 comment. In Pendley v. Ayers, 45 N.C.App. 692, 263 S.E.2d 833 (1980), as here, the trial court had ordered a default judgment and a trial on damages. This Court held: "The purported judgment entered herein was an entry of default. An entry of default is not a final order or a final judgment." Id. at 694, 263 S.E.2d at 834.

Id. at 652-53, 318 S.E.2d at 110.

Here the trial court in its findings of fact referred to petitioner's "Motion for Entry of Default" and concluded that "the Clerk shall sign and file the Entry of Default, if not already signed and filed." The trial court then set for hearing a determination as to the money and property taken, damages caused, and "all other things" taken. We conclude that here the order entered by the trial court was not a final order or final judgment but was an interlocutory entry of default and not subject to review here.

We also note respondent's contention regarding a possible violation of N.C. Gen.Stat. § 1A-1, Rule 4(a) (1990), which provides that "[u]pon the filing of the complaint, summons shall be issued forthwith, and in any event within five days." In *401 Stokes v. Wilson and Redding Law Firm, 72 N.C.App. 107, 111, 323 S.E.2d 470, 474 (1984), disc. review denied, 313 N.C. 612, 332 S.E.2d 83 (1985), we stated that

[a]lthough N.C.Gen.Stat. § 1A-1, Rule 4(a) (1983) is clear and unambiguous in its requirement that "upon the filing of the complaint, summons shall be issued forthwith, and in any event, within five days," our Court has recognized that a properly issued and served second summons can revive and commence a new action on the date of its issuance.

Thus, here the second summons commenced a new action on 26 January 1990, the date it was issued.

Appeal dismissed.

HEDRICK, C.J., and WELLS, J., concur.