Atkins v. Household Finance Corp. of Casper, 4878
Decision Date | 14 July 1978 |
Docket Number | No. 4878,4878 |
Citation | 581 P.2d 193 |
Parties | Vicki ATKINS, Appellant (One of defendants below), John R. Atkins, (One of defendants below), v. HOUSEHOLD FINANCE CORPORATION OF CASPER, WYOMING, Appellee (Plaintiff below). |
Court | Wyoming Supreme Court |
Duane Myres, Casper, for appellant.
William F. Swanton, Casper, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
This is an appeal from an order denying appellant's motion to set aside a summary judgment under Rule 60(b)(1), W.R.C.P. 1 Appellee sought and was granted summary judgment, on December 2, 1976, against appellant and her then-divorced husband, in the amount of $2,319.36. The summary judgment was based on a determination of liability under a defaulted note executed by appellant to appellee as a co-maker or guarantor on her brother-in-law's loan, which was secured by a color television set and a 1968 Chevrolet vehicle. On June 24, 1977, appellant filed her motion to set aside the summary judgment, alleging that the judgment had been entered because of mistake, inadvertence and surprise on her part. The trial court disagreed and denied the motion. We will affirm.
In her verified motion to set aside the judgment, appellant asserted that she had filed a pro se answer to appellee's complaint on May 27, 1975; that appellee had moved for summary judgment on September 1, 1976; that she had attended a hearing pursuant to that motion on November 30, 1976; that she had been led to believe that the hearing was just a preliminary hearing and that she would have additional time to obtain counsel and adequately defend the action. Finally, she argues that she had a meritorious defense to the action in support of which assertion she sets out facts relating to the failure of appellee to give notice of a default sale of the 1968 Chevrolet vehicle. In the material portions of the affidavit of appellant attached to her motion, she deposes and says:
The record disclosed that on December 1, 1976 the day following the summary-judgment hearing the trial court judge received a letter from appellee's attorney which stated:
The docket entries for this case reveal that the judgment was filed December 2, 1976, but there is no indication therein that the clerk of court mailed a copy of the judgment to appellant. Counsel for appellee argues that the trial judge announced his judgment in open court, but since no transcript of the November 30 hearing appears in the record, we have no record knowledge of that asserted fact. Subsequent to entry of the summary judgment, two executions were issued and served on employers of appellant's former husband, but neither were effective garnishments. In February, 1977, an execution was issued and served on appellant's employer, leading appellant to seek legal counsel.
On appeal, appellant contends that the trial court abused its discretion in denying her motion to set aside the summary judgment. A motion under Rule 60(b), W.R.C.P. is addressed to the sound discretion of the court and must be clearly substantiated by adequate proof. Martellaro v. Sailors, Wyo., 515 P.2d 974, 975. The burden is upon the movant to bring himself within the rule. Martellaro v. Sailors, supra; and Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595, 597. In reviewing the denial of such a motion, this court is limited to a determination of whether the trial court was clearly wrong. Turnbough v. Campbell County Memorial Hospital, supra.
In support of her contention, appellant takes the position in her appellate brief that in response to her inquiry about the notice of summary judgment hearing, appellee's counsel informed her that "it was just a preliminary hearing and that she did not need an attorney." This claim of misrepresentation was not fully expressed in her affidavit in support of the Rule 60(b)(1) motion, and appellant did not appear to testify at the hearing on that motion. As a result, we cannot conclude that this particular ground was adequately presented to the trial court. This court will not consider matters upon...
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