First Union National Bank v. Wilson

Court of Appeals of North Carolina

First Union National Bank v. Wilson

300 S.E.2d 19, 60 N.C. App. 781, 1983 N.C. App. LEXIS 2542

CourtCourt of Appeals of North Carolina

DecidedFebruary 15, 1983

Docket8226DC253

StatusPublished

Cited by2 cases

This text of 300 S.E.2d 19 (First Union National Bank v. Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First Union National Bank v. Wilson, 300 S.E.2d 19, 60 N.C. App. 781, 1983 N.C. App. LEXIS 2542 (N.C. Ct. App. 1983).

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Opinion

BECTON, Judge.

We observe first that the Douglases failed properly to set forth their exceptions and assignments of error concerning the dismissal of their appeal as required by Rule 10 of the North Carolina Rules of Appellate Procedure, and that the Clerk’s entry of default was interlocutory and thus not subject to review here. Crotts v. Pawn Shop, 16 N.C. App. 392, 192 S.E. 2d 55 (1972), cert. denied, 282 N.C. 425, 192 S.E. 2d 835 (1972). Therefore, the only *783 question before us is the propriety of the judgment of default entered against the Douglases.

When default is entered due to defendant’s failure to answer, the substantive allegations raised by plaintiffs complaint are no longer in issue, and for the purposes of entry of default and default judgment are deemed admitted.

Bell v. Martin, 299 N.C. 715, 721, 264 S.E. 2d 101, 105 (1980), petition for reh. denied, 300 N.C. 380 (1980). It is undisputed that the Clerk granted plaintiff’s motion for an entry of default because defendants failed to answer in a timely fashion. The Answer was not filed until two days after the entry of default. Clearly, the entry of default was proper. Rather than appeal the entry of default, defendants’ remedy was a motion to set aside the default. Bell v. Martin. This they did not do. The trial court, therefore, properly entered the judgment of default against defendants.

Defendants next argue that they were not properly apprised of the proceeding during which the default judgment was entered. We find no merit in that contention. Defendants’ attorney, Ted Douglas, was notified of the hearing by mail; a notice of hearing was posted in The Mecklenburg Times, as per the rules of practice for the 26th Judicial District; and defendants waived any objections as to notice by entering a general appearance at that hearing. Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709 (1953).

We have examined defendants’ other contentions and find them to be without merit. For the foregoing reasons, the judgment of the trial court is

Affirmed.

Judges Webb and Phillips concur.

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BECTON, Judge.

We observe first that the Douglases failed properly to set forth their exceptions and assignments of error concerning the dismissal of their appeal as required by Rule 10 of the North Carolina Rules of Appellate Procedure, and that the Clerk’s entry of default was interlocutory and thus not subject to review here. Crotts v. Pawn Shop, 16 N.C. App. 392, 192 S.E. 2d 55 (1972), cert. denied, 282 N.C. 425, 192 S.E. 2d 835 (1972). Therefore, the only *783 question before us is the propriety of the judgment of default entered against the Douglases.

When default is entered due to defendant’s failure to answer, the substantive allegations raised by plaintiffs complaint are no longer in issue, and for the purposes of entry of default and default judgment are deemed admitted.

Bell v. Martin, 299 N.C. 715, 721, 264 S.E. 2d 101, 105 (1980), petition for reh. denied, 300 N.C. 380 (1980). It is undisputed that the Clerk granted plaintiff’s motion for an entry of default because defendants failed to answer in a timely fashion. The Answer was not filed until two days after the entry of default. Clearly, the entry of default was proper. Rather than appeal the entry of default, defendants’ remedy was a motion to set aside the default. Bell v. Martin. This they did not do. The trial court, therefore, properly entered the judgment of default against defendants.

Defendants next argue that they were not properly apprised of the proceeding during which the default judgment was entered. We find no merit in that contention. Defendants’ attorney, Ted Douglas, was notified of the hearing by mail; a notice of hearing was posted in The Mecklenburg Times, as per the rules of practice for the 26th Judicial District; and defendants waived any objections as to notice by entering a general appearance at that hearing. Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709 (1953).

We have examined defendants’ other contentions and find them to be without merit. For the foregoing reasons, the judgment of the trial court is

Affirmed.

Judges Webb and Phillips concur.

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300 S.E.2d 19, 60 N.C. App. 781, 1983 N.C. App. LEXIS 2542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-union-national-bank-v-wilson-ncctapp-1983.

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