Smith v. Arkansas State Highway Commission

Per Curiam. The appellee has moved to dismiss this appeal from a judgment of the Garland County Circuit Court, rendered after the appellee had answered and been notified of the trial date and after the trial court’s order setting aside the judgment. The appellee correctly states that an order setting aside a default judgment is not a final order from which an appeal will lie. See Schueck Steel, Inc. v. McCarthey Brothers Co., 289 Ark. 436, 711 S.W.2d 820 (1986). However, a judgment rendered after the defendant has answered and after a trial at which he failed to appear is not a default judgment under ARCP Rule 55. Dawson v. Picken, 1 Ark. App. 168, 613 S.W.2d 846 (1981). Since the judgment set aside by the trial court was not a default judgment, but rather a judgment entered after trial, we treat the trial court’s order as one granting a new trial. Because this is a final and appealable order, the appellee’s motion to dismiss the appeal is denied. Day v. Day, 20 Ark. App. 48, 723 S.W.2d 378 (1987); Ark. R. App. P. 2(a)(3). Motion denied.