Opinion
79-436.
August 22, 1980.
Appeal from Circuit Court, Mobile County, Michael E. Zoghby, J.
Leo L. Crain, Mobile, for appellant.
Jim H. Fernandez, of McFadden, Riley Parker, Mobile, for appellee.
The dispositive issue in this case is whether the trial court erred by failing to set aside a default judgment entered against Paul C. Smith in behalf of Gamma Construction Company, Inc., a Corporation. Resolution of that issue turns on whether or not submitting to deposition on oral examination under order of court constitutes an appearance entitling Smith to the three days' notice prior to the hearing on the application for default judgment and entry thereof as required by Rule 55 (b)(2), ARCP.
We hold that submission to deposition upon oral examination does not constitute an appearance within the meaning of Rule 55 (b)(2), ARCP; therefore, Smith was not entitled to the three days' notice under that rule before entry of default judgment against him.
The judgment below is due to be and is hereby affirmed under the authority of Frazier v. Malone, 387 So.2d 145 (Ala. 1980).
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and SHORES, JJ., concur.