In Action Against Multiple Defendants, Default Judgment Against One of Them Is Not Final For Purposes Of Appeal

The Alabama Supreme Court rejected the appellees’ contention that an appeal from a default judgment in Progress Industries, Inc. v. Wilson, No. 1080578 (June 30, 2010), was untimely.  The plaintiffs argued that the 42 day period for appeal under ARAP 4 started following the date on which the trial court entered an order assessing damages for the default judgment.  The Court disagreed:  "[a] judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants. Ford Motor Credit Company v. Carmichael, Ala., 383 So.2d 539 (1980). Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires."  Progress Industries (quoting Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982)).  The Court held that the time for filing an appeal began to run from the date that the trial court certified the default judgment under ARCP 54(b), and the ARCP 55(c) motion to set aside the default that the defendant filed within 30 days of the 54(b) certifiation tolled the time for appeal until the the defendant’s 55(c) motion was denied by operation of law 90 days later pursuant to ARCP 59.1