The opinion
Lawson Cloninger, Judge, concurring. I concur in the result reached by the majority, but I disagree with its reasoning.
The majority cites no Arkansas case dealing with the issue before the Court which was decided subsequent to the adoption of the Arkansas Rules of Civil Procedure. Both Perry and Burns, relied upon by the majority, were decided on the basis of Ark. Stat. Ann. § 29-401 (Repl. 1962) and prior to July 1, 1979, the effective date of the Rules of Civil Procedure.
Section 29-401 provided only that a default judgment should be rendered only if there was no timely appearance or pleading; Rules of Civil Procedure, Rule 55(a) makes that same provision, but Rule 55(b) adds a new dimension, providing:
Manner of entering judgment. The party entitled to a judgment by default shall apply to the court thereof ... If, in order to enable the court to enter judgment or to carry it into effect, it is necessary ... to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.
Rule 55(a) appears to make the entering of a default judgment mandatory when the defendant fails to plead or appear, but Rule 55(b) immediately authorizes the court, for any of the reasons enumerated, to conduct such hearings as it deems necessary and proper and may direct a trial by jury.
The only question on this appeal is whther the trial court was in error in denying appellants’ motion for default judgment. Rule 55(c) has no bearing on the issue before the Court, because Rule 55(c) deals only with the power of the court to set aside a default judgment previously entered.
On appeal, the decision of the trial court will not be disturbed unless there is an abuse of discretion. Because of the state of the record in this case it is impossible to discern whether the trial court abused its discretion in denying the motion. The record contains no order; only the meager docket entry, “Default denied.”
It appears unlikely that the trial court accepted the explanation of the attorney for appellee that the answer mailed to the clerk and the two copies mailed to appellants’ attorneys were all lost in the mail, but the trial court exercised its discretion in presenting all the issues to the jury, and we are presented with no evidence that the court’s discretion was abused. I would hold that in the absence of a showing that the trial court abused its discretion we must presume that there was no abuse. Since there is nothing in the record before us which indicates the trial court erred I would affirm the judgment.