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[T] Viswanathan v. Chrysler Financial Co.11/4/2003
ts should be resolved in favor of allowing the case to proceed on the merits. North Carolina Nat'l Bank v. McKee, 63 N.C. App. 58, 303 S.E.2d 842 (1983). In Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981), the defendant filed an untimely answer. After the answer was filed, the clerk entered a default against the defendant. The trial court refused to set aside the entry of default. Our Supreme Court reversed, holding that once an answer has been filed, default may not be entered, even though the answer was late. Here, the trial court was correct in not enteringdefault, even though defendant's answer was untimely, as the answer had been filed. See Broughton v. McClatchy Newspapers, Inc., et al. (COA02-1034) (Filed: Nov. 4, 2003). Further, plaintiff never moved to strike the answer of ARS and did not even appear for the hearing on ARS's motion to dismiss. This case is
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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