The opinion
Chief Judge MORRIS
dissenting.
Plaintiff’s appeal should be dismissed. An order setting aside a default judgment is interlocutory and not immediately ap-pealable unless it affects a substantial right of the appellant and will work injury to him if not corrected before an appeal from final judgment. Bailey v. Gooding, 301 N.C. 205 , 270 S.E. 2d 431 (1980). The purpose of this rule is “to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard.” Id. at 209 , 270 *633 S.E. 2d at 434 . In this case dismissal will merely delay plaintiffs appeal until after final judgment. Although plaintiff would have to undergo a trial on the merits, avoidance of trial is not a “substantial right” requiring immediate appeal. Id. Plaintiff has preserved its exception to the order setting aside the default judgment and can appeal and assign error thereto should a trial on the merits result in a judgment for defendant. Should a trial on the merits result in a judgment for plaintiff and should defendant appeal therefrom, plaintiff may set out its exception to and cross assign as error the action of the trial court in setting aside the default judgment. Rule 10(d), North Carolina Rules of Appellate Procedure.
I perceive no reason to exercise our discretionary authority to review the matter by treating this purported appeal as a petition for writ of certiorari and allowing the writ. Another panel has already denied a petition for a writ of certiorari previously filed here by plaintiff. In my view, plaintiffs premature appeal clearly should be dismissed.
I also disagree with the majority’s decision on the merits. The law is well established in this State that default may not be entered by the clerk after answer has been filed. G.S. 1A-1, Rule 55; Bailey v. Davis, 231 N.C. 86 , 55 S.E. 2d 919 (1949). An answer “is deemed to be filed when it is delivered for that purpose to the proper officer and received by him.” Peebles v. Moore, 302 N.C. 351, 355 , 275 S.E. 2d 833, 835 (1981). This rule holds true even when the answer is delivered late or is deficient in some respect. See Peebles v. Moore, supra; Rich v. Norfolk Southern Railway, 244 N.C. 175 , 92 S.E. 2d 768 (1956); White v. Southard, 236 N.C. 367 , 72 S.E. 2d 756 (1952); Steed v. Cranford, 7 N.C. App. 378 , 172 S.E. 2d 209 (1970). In such instances, plaintiff’s remedy is by motion to strike the answer and then move for entry of default and default judgment. Bailey v. Davis, supra. Until an answer is so challenged, however, it remains filed of record once it has been delivered to and accepted by the proper court officer. Clearly, defendant did not fail to plead in the present case, though its answer may have been defective because prepared and signed by an out-of-state attorney who had failed to qualify to appear in the action. However, plaintiff never challenged the answer by motion to strike. Indeed, it even filed a reply. Upon plaintiffs subsequent motion for judgment by default, the clerk was not at liberty to ig *634 nore defendant’s answer which remained filed of record. Because the clerk was without authority to enter a default judgment while the answer was on file, that judgment was properly set aside by Judge Long.
Because defendant did not fail to plead in this action, the issue of excusable neglect need not be reached, and Judge Long’s findings thereon are superfluous. Nevertheless, I must express my disagreement with the majority’s decision on this issue under the facts of this case. I perceive no excusable neglect on the part of defendant, a Virginia Corporation, in hiring a Virginia attorney to represent it in an action filed in the courts of North Carolina where, by virtue of a long standing practice and custom, that attorney had apparent authority to practice in the North Carolina courts. Judge Long did not commit error in taking judicial note of such custom because, although it did not excuse defendant’s attorney from complying with G.S. 84-4.1, it was relevant to the question of the degree of care exercised by defendant in defending the action. Furthermore, in hiring Virginia counsel, defendant was merely exercising its fundamental right to select counsel of its own choosing to represent it in this action. Holley v. Burroughs Wellcome Co., 56 N.C. App. 337 , 289 S.E. 2d 393 (1982). In Holley an order barring an out-of-state attorney from appearing on the plaintiffs behalf because of his failure to comply with all of the requirements of G.S. 84-4.1 was vacated and remanded because the trial judge had erroneously exercised his discretion in the matter, effectively preventing the plaintiff from seeking leave to amend the deficiencies in her attorney’s application. Likewise, this defendant should not be penalized for hiring out-of-state counsel where that counsel had the apparent ability to appear in the action, where the laws of this State provide a means by which such counsel may appear in our courts and where defendant’s counsel did comply with those legal requirements, although somewhat belatedly.
I vote to dismiss this appeal.