¶1concurring.
¶2I concur in the result because it more closely approximates the result that would be reached if the appeal should be dismissed. If dismissed, the case would return to the trial court unobstructed by the “judgment of default”; and if there is a trial and final judgment, the appellant could then appeal and challenge the various rulings of the trial court where exceptions have been made and preserved on appeal. The judgment appealed from is interlocutory and not appealable. I would not elect to consider the case on its merits. This Court should pursue a policy of strict adherence to the Rules of Appellate Procedure which are designed to prevent premature and fragmentary appeals.
¶3dissenting.
¶4I respectfully disagree with the results reached by the opinions of the majority. Since my colleagues have reached the same spurious result by travelling in opposite directions, I must treat each opinion separately.
¶5First, I do agree with Judge Vaughn that the order of Judge Stevens dated 9 May 1979 setting aside the judgment of default dated 6 February 1978 must be vacated. The judgment of default entered by Judge Smith on 6 February 1978 was not a “final judgment” within the meaning of G.S. § 1-277 or G.S. § 1A-1, Rule 60(b). Thus, defendants had no right of immediate appeal from the judgment of default which determined the issue of liability only. The judgment of default entered by Judge Smith, although it precluded the defendants from defending the case on the issue of liability, was an interlocutory judgment, and was not immediately appealable. Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). The proper procedure for *346defendants was to except to the entry of the default judgment, as they did, and use such exception as the basis of an assignment of error to be presented for review, when and if the case was appealed after the jury determined the issue of damages. Rule 60(b), by its express terms, applies only to final judgments. O’Neill v. Bank, 40 N.C. App. 227, 252 S.E. 2d 231 (1979). Rule 60(b) has no application to a default judgment entered pursuant to G.S. § 1A-1, Rule 55(a), where the issue of damages has not been determined. Judge Stevens, therefore, had no authority to consider defendants’ motion to set aside the default judgment entered by Judge Smith, and his order entered pursuant to such motion setting aside the default judgment is a nullity and should be vacated. O’Neill v. Bank, supra.
¶6Judge Vaughn’s decision vacates Judge Stevens’ order, and remands the proceeding to the Superior Court for another Superior Court judge “to determine whether good cause is shown to set aside the entry of default.” Judge Vaughn exercises the “discretion” of this Court to reverse the “orders” of Judge Smith and to remand the case to the Superior Court on the premise that Judge Smith was “operating under a misapprehension of the law . . . [in] applying the more strict standards of Rule 60(b)” in not setting aside the “entry of default.” While Judge Smith did recite in his order denying defendants’ motion to set aside the entry of default that their failure to appear or plead “was not due to any of the reasons justifying relief set out in Rule 60(b)”, he plainly stated that he was acting “in the discretion of the Court”, and that the defendants had not shown “good cause” for setting aside the entry of default. Obviously, Judge Smith was not “operating under a misapprehension of the law” and was not applying the stricter standards of Rule 60(b) since he made no findings of fact which would have been necessary to support a conclusion of “mistake, inadvertence, surprise, or excusable neglect.”
¶7Although this Court may have discretionary authority to rule in some matters, it is, in my opinion, an improper exercise of that discretion for this Court to review and reverse interlocutory and discretionary rulings of the trial court unless or until such matters are before this Court on appeal or by appropriate writ, and the parties have had an opportunity to brief and argue their respective positions. The majority has remanded this case for another Superior Court judge to exercise his discretion with *347respect to whether defendants’ motion to set aside the entry of default should be denied, and plaintiff’s motion for the entry of judgment by default should be allowed. In other words, the majority would have another Superior Court judge either affirm or overrule Judge Smith, in violation of the rule aptly stated by Judge Vaughn that “[generally, one superior court judge cannot overrule another.” [Citing In re Burton, 257 N.C. 534, 126 S.E. 2d 581 (1962).] If, upon remand, the next Superior Court judge, oblivious to Judge Vaughn’s admonition that “[djefault judgments are not favored in the law”, in the exercise of his discretion again denies the defendants’ motion to set aside the entry of default, and allows plaintiffs’ motion for a default judgment, would this Court again, ex mero mo tu, exercise its “discretion” to review and reverse such orders, and remand for still another hearing before another judge, until the result desired by the majority has been reached?
¶8Judge Clark would dismiss the appeal from Judge Stevens’ order setting aside the default judgment on the theory that such order was interlocutory and not immediately appealable. The problem with this ruling is that it leaves standing an order which is void. Judge Clark has in effect allowed one Superior Court judge to overrule another Superior Court judge on essentially the same evidence. While stating that “[t]his Court should pursue a policy of strict adherence to the Rules of Appellate Procedure which are designed to prevent premature and fragmentary appeals”, Judge Clark has, in my opinion, ignored not only the Rules of Appellate Procedure, but the Rules of Civil Procedure as well, in dismissing the appeal from Judge Stevens’ void order, when it should be vacated, and in reviewing and reversing Judge Smith’s orders, and in remanding the case to be considered by another Superior Court judge.
¶9I vote simply to vacate Judge Stevens’ order and to remand the proceeding to the Superior Court for trial on the issue of damages.