#### ODELL HARDWARE COMPANY, INC. v. ALFRED KILPATRICK and JANIE KILPATRICK, Individually and doing business as Kilpatrick Appliance Service; and Tire and Appliance Center, Inc.

No. 7418SC608

(Filed 18 September 1974)

Courts § 6— appeal to superior court from clerk

Plaintiff’s appeal from an order of the clerk of superior court vacating and setting aside judgment of default entered against defendants was made within the time allowed by statute and should have been heard by the superior court judge on its merits.

Appeal by plaintiff from Long, Judge, 18 March-1974 Session of Superior Court held in Guilford County.

Plaintiff filed this action to recover on a debt allegedly owed by defendants. None of the defendants filed answer and judgment in favor of plaintiff was entered on 21 February 1972.

On 26 March 1973, on motion of the individual defendants, the Clerk of Superior Court ordered that the judgment by default entered against them be vacated and set aside. Plaintiff, well within the time allowed by statute, appealed to the Judge of Superior Court having jurisdiction.

On 25 March 1974, Judge Long entered an order wherein he concluded that plaintiff was guilty of laches by reason of the failure to cause the appeal from the Clerk to be heard by a judge of the Superior Court at an earlier date. Plaintiff’s appeal from the Clerk was dismissed.

*117 Jordan, Wright, Nichols, Caffrey & Hill by James E. Coltrane, Luke Wright and Lindsay R. Davis, Jr., for plaintiff appellant.

No counsel on appeal for defendant appellee.

VAUGHN, Judge.

The Judge should have heard plaintiff’s appeal from the Clerk on its merits. The order dismissing the appeal was improvidently entered and must be vacated.

Vacated and remanded.

Judges Campbell and Parker concur.