The initial question which we must consider, although not addressed by either party in their briefs, is whether an appeal lies from the default judgment dismissing defendant’s answer and counterclаim. If defendant has no right to appeal, we must dismiss the appeal on our own motion.
Love v. Moore,
The default judgment clearly determines fewer than all of the claims involved sincе it does not dispose of the underlying claim for an absolute divorce. An interlocutory order is appealable if it affects some substantial right claimed by the appellant and if it will work injury if not corrected before final judgment. G.S. 1-277(a) and G.S. 7A-27(d)(1);
Atkins v. Beasley,
*496 Defendant first argues in her brief that the сourt erred by imposing sanctions against her before considering and passing on her prior motion for a protective order. Defendant moved for a protеctive order on the ground that she did not receive ten days’ notice of the taking of her deposition, as required by G.S. 1A-1, Rule 30(b)(1). However, the record shows that defendant was initially notified of the taking of her deposition on 11 September 1981. After the deposition was rescheduled to be taken in Charlotte, defendant’s attorney had oral nоtice on 17 September and written notice on the following day of the 28 September deposition. Therefore, pursuant to G.S. 1A-1, Rule 6(a), excluding the day of notice, the 18th, and including the last day, the 28th, defendant received the ten days’ notice required by G.S. 1A-1, Rule 30(b)(1).
The trial court did not err by failing to rule on defendant’s motion for a protective order. Although the judge made no specific ruling on this motion, it is clear that defendant received the required ten days’ notice and that the motion should have been deniеd. Although the better practice would have been for the judge to specifically rule on the motion, his failure to do so was not prejudicial to defendant.
State v. Partin,
Defendant next argues that she was given only three days’ (excluding Saturday and Sunday) notice of the hearing on plaintiffs motion to impose sanctions, in violation of the five days’ notice requirement of G.S. 1A-1, Rule 6(d). The notice оf hearing was filed on 25 September 1981 and informed defendant that a hearing on the motion would be held on 29 September or, if not reached on that date, on 1 October 1981. The hearing occurred on 1 October 1981. Therefore, defendant had five days’ actual notice of the hearing. Defendant has brought forward no argument nor does the record reveal that she was prejudiced by virtue of the length of notice given.
Story v. Story,
Defendant contends in her next assignment of error that the record and pleadings were not sufficient to support the judge’s findings of fact and conclusions of law that plaintiff was entitled to have sanctions imposed against defendant. Defendant’s argument concerning the findings of adequate notice has been discussed earlier in this оpinion. Defendant primarily focuses her argument on the court’s finding and conclusion that defendant’s pleadings, considered in conjunction with her failure to appear at the deposition and the hearing on plaintiffs motion, were designed to delay, frustrate and unnecessarily prolong litigation and were frivolous. The affidavit of plaintiff’s counsel, which is a part of the record, and the transcript of what occurred at the taking of the deposition show that defendant failed to appеar at the deposition for which she received proper ten days’ notice and for which she was subpoenaed. Her motion for a protective ordеr based upon insufficient notice was frivolous and may have been designed to delay litigation, since a reading of Rule 6(a) plainly discloses that in computing time, the first dаy is excluded and the last day is included. Further, defendant failed to appear at the scheduled hearing on the motion and offered as an excuse for her failurе to appear only that she had received inadequate notice of the hearing. Since she had actually received five days’ notice of the hearing, her absence at the hearing was unjustified. We hold that the findings were based on competent evidence and that the findings supported the conclusions of law.
Coble v. Coble,
In her finаl argument defendant submits that the judge abused his discretion in imposing the most severe sanctions permissible under G.S. 1A-1, Rule 37(d), and that such sanctions were not justified under the circumstances of this case. Rule 37(d) allows a judge to enter default judgment as a sanction for failure to appear for a deposition after having been given propеr notice.
Imports, Inc. v. Credit Union,
The record discloses that defendant received proper notice of the taking of the deposition, that she never notified plaintiff’s cоunsel she would not attend, that plaintiffs counsel and a court reporter waited over an hour for defendant to appear at the deposition, that she based her refusal to attend on a frivolous claim that notice was inadequate, that she received actual notice of five days that a hearing would be held оn plaintiff’s motion to impose sanctions and that she failed to notify plaintiff’s counsel or the court that neither she nor her attorney would attend the hearing. Based upon these facts, we find no abuse of discretion by the trial court in the imposition of these sanctions.
To clarify the judgment below, we point out that the judgment does not dispose of the underlying action for absolute divorce. The court’s ruling that the allegations contained in plaintiff’s complaint are deemed admitted does not rеlieve plaintiff of the burden of appearing in court to prove the grounds alleged in the complaint. In North Carolina a plaintiff cannot obtain judgment by default in a divorce proceeding. A divorce will be granted only after the facts establishing a statutory ground for
*499
divorce have been pleaded and actually proved. G.S. 50-10;
Schlagel v. Schlagel,
We find that the sanctions imposed by the trial court were proper. The judgment of the trial court is
Affirmed.