State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_55

Rule 55. Default.

(a)        Entry. – When aparty against whom a judgment for affirmative relief is sought has failed toplead or is otherwise subject to default judgment as provided by these rules orby statute and that fact is made to appear by affidavit, motion of attorney forthe plaintiff, or otherwise, the clerk shall enter his default.

(b)        Judgment. –Judgment by default may be entered as follows:

(1)        By the Clerk. – Whenthe plaintiff's claim against a defendant is for a sum certain or for a sumwhich can by computation be made certain, the clerk upon request of theplaintiff and upon affidavit of the amount due shall enter judgment for thatamount and costs against the defendant, if the defendant has been defaulted forfailure to appear and if the defendant is not an infant or incompetent person.A verified pleading may be used in lieu of an affidavit when the pleadingcontains information sufficient to determine or compute the sum certain.

                  In all caseswherein, pursuant to this rule, the clerk enters judgment by default upon aclaim for debt which is secured by any pledge, mortgage, deed of trust or othercontractual security in respect of which foreclosure may be had, or upon aclaim to enforce a lien for unpaid taxes or assessments under G.S. 105‑414,the clerk may likewise make all further orders required to consummateforeclosure in accordance with the procedure provided in Article 29A of Chapter1 of the General Statutes, entitled "Judicial Sales."

(2)        By the Judge. –

a.         In all other casesthe 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 incompetentperson unless represented in the action by a guardian ad litem or other suchrepresentative who has appeared therein. If the party against whom judgment bydefault is sought has appeared in the action, that party (or, if appearing byrepresentative, the representative) shall be served with written notice of theapplication for judgment at least three days prior to the hearing on suchapplication. If, in order to enable the judge to enter judgment or to carry itinto effect, it is necessary to take an account or to determine the amount ofdamages or to establish the truth of any averment by evidence or to take an investigationof any other matter, the judge may conduct such hearings or order suchreferences as the judge deems necessary and proper and shall accord a right oftrial by jury to the parties when and as required by the Constitution or by anystatute of North Carolina. If the plaintiff seeks to establish paternity underArticle 3 of Chapter 49 of the General Statutes and the defendant fails toappear, the judge shall enter judgment by default.

b.         A motion forjudgment by default may be decided by the court without a hearing if:

1.         The motionspecifically provides that the court will decide the motion for judgment bydefault without a hearing if the party against whom judgment is sought fails toserve a written response, stating the grounds for opposing the motion, within30 days of service of the motion; and

2.         The party againstwhom judgment is sought fails to serve the response in accordance with this sub‑subdivision.

(c)        Service bypublication. – When service of the summons has been made by published notice,no judgment shall be entered on default until the plaintiff shall have filed abond, approved by the court, conditioned to abide such order as the court maymake touching the restitution of any property collected or obtained by virtueof the judgment in case a defense is thereafter permitted and sustained;provided, that in actions involving the title to real estate or to foreclosemortgages thereon or in actions in which the State of North Carolina or acounty or municipality thereof is the plaintiff such bond shall not berequired.

(d)        Setting asidedefault. – For 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 inaccordance with Rule 60(b).

(e)        Plaintiffs,counterclaimants, cross claimants. – The provisions of this rule apply whetherthe party entitled to the judgment by default is a plaintiff, a third‑partyplaintiff, or a party who has pleaded a crossclaim or counterclaim. In allcases a judgment by default is subject to the limitations of Rule 54(c).

(f)         Judgment againstthe State of North Carolina. – No judgment by default shall be entered againstthe State of North Carolina or an officer in his official capacity or agencythereof unless the claimant establishes his claim or right to relief byevidence. (1967, c. 954, s. 1; 1971, cc. 542, 1101; 1977, c.675; 1991, c. 278, s. 1; 1993 (Reg. Sess., 1994), c. 733, s. 3; 1999‑187,s. 1.)