GS 1a-1 Rule 55 Interpretation
In Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981), the trial court entered a default against the defendant after the defendant had filed his answer. Peebles, 302 N.C. at 356, 275 S.E.2d at 836.
The Supreme Court of North Carolina stated as follows:
The portion of G.S. 1A-1, Rule 55, applicable to the facts of the case before us, requires a clerk to make an entry of default "when a party . . . has failed to plead . . . ." When a party has answered, it cannot be said that he "has failed to plead . . . ." We are unable to perceive anything in this language or in the language of the entire rule, G.S. 1A-1, Rule 55, which alters the established law that defaults may not be entered after answer has been filed, even though the answer be late. Id.
The Supreme Court of North Carolina recognized that "the better reasoned and more equitable result may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise." Id.
After concluding that justice would be served by vacating the entry of default and permitting the parties to litigate, our Supreme Court held that the Clerk of Superior Court of Wake County was without authority to enter the default when the answer was on file.
In light of this holding, we do not deem it necessary to address the question of whether the trial judge abused his discretion in refusing to set aside the entry of default. Id. at 356-57, 275 S.E.2d at 836.
The Supreme Court remanded the matter for further proceedings. Id. at 357, 275 S.E.2d at 836.