Booth v. Magee Carpet Co., 4516

• Citation: 548 P.2d 1252
• Decision Date: 23 April 1976
• Docket Number: No. 4516,4516
• Parties: Richard Lynn BOOTH d/b/a Contract Interior Design, Appellant (Defendant below), v. MAGEE CARPET COMPANY, a corporation, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 1252

548 P.2d 1252 Richard Lynn BOOTH d/b/a Contract Interior Design, Appellant (Defendant below),
v.
MAGEE CARPET COMPANY, a corporation, Appellee (Plaintiff below). No. 4516. Supreme Court of Wyoming. April 23, 1976.
Rehearing Denied June 2, 1976.

Page 1253

Juan L. DeHerrera and Philip P. Whynott of DeHerrera & Whynott, Cheyenne, for appellant.

John G. Hanes of Hanes, Carmichael, Gage & Speight, Cheynne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, D. J. Retired.

GUTHRIE, Chief Justice.

Appellant prosecutes this appeal from an order of the trial court denying his motion to set aside a default and default judgment entered against him.

Appellee herein, Magee Carpet Company, filed its complaint in the District Court of Laramie County on June 11, 1974, naming as the defendant Contract Inerior Design, and caused a summons to be served on Contract Interior Design in Salt Lake City. The summons and a copy of the complaint were received by the defendant on June 14. On June 14 plaintiff filed its amended complaint nming this appellant, doing business as Contract Interior Design, as defendant, and caused a summons to be issued thereon. The summons and a copy of the complaint were directed by registered mail to appellant in Salt Lake City, and he received them on June 27, 1974. Service was proved as required by Rules 4(l)(2) and 4(m)(iii), W.R.C.P. This service was based on § 5-4.2, W.S.1957, 1975 Cum. Supp., being described as 'a claim for relief arising from the defendant contracting to supply services or things in this state, to-wit: installing carpeting in the State Office Building, Cheyenne, Wyoming.'

Nothing further transpired until August 20 when Gary A. Weston, an attorney admitted to practice in Utah, who had been retained on August 19, 1974, telephoned the office of John G. Hanes, plaintiff's attorney. Hanes was out of his office and did not receive this call, but on August 20 Weston talked to Hanes, advising him of his desire to file an answer, and asked if a default had been entered and if it had not been whether Hanes would give him a reasonable time to file the answer. Hanes advised him that because of his absence he did not know if a default had been entered and if it had not been would ask his client for instructions. Weston immediately called the clerk of the district court and was advised that default had not yet been entered. Thereafter Hanes called Weston and told him that although default had not been entered he had been directed by his client to enter the default immediately and that he had done so. On August 27 judgment was entered against appellant based upon the default, and the following day Hanes directed a letter to Weston, which he received on August 30, enclosing a copy of the judgment entered in the matter. Thereafter, on October 7, appellant filed his motion to set aside entry of default and default judgment, which after its submission upon the affidavits and briefs was denied by the trial court.

The appellant, in pursuit of this appeal, tenders the following as the basis therefor:

'That the District Court errored (sic) in deciding that the Appellant had not made an appearance and was therefore not entitled to the three day written notice requirement of Rule 55(b)(2) Wyoming Rule of Civil Procedure.

'That District Court errored (sic) in deciding that the Appellant had not established good cause and meritorious defense to have the Default Judgment set aside.

'That the District Court errored (sic) in deciding that proper service was made on Appellant when the issue was subject matter jurisdiction and venue.'

Page 1254

Examination must first be made of appellant's contention that under the facts in this case such an appearance had been made that it was necessary to give three days' notice of the entry of default under Rule 55(b)(2), W.R.C.P. Although appellee argues that because Weston is not a member of the Wyoming Bar he could not make an appearance as contemplated by that rule, we find it unnecessary to determine that question in our disposal. We find no authority cited by appellant which we believe applicable to the factual situation in this case. He makes principal reliance upon the case of . f. l/ivermore Corporation v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256, 432 F.2d 689, which he contends is particularly applicable and is authority for the position which would force us to hold that appellant had made such appearance under the contemplation of Rule 55(b)(2). We might dismiss this contention with the succinct statement that the facts make it inapplicable, but we will summarily point out factual distinctions.

First, the letter upon which the Livermore holding is based was mailed prior to the answer date and received one day after the answer was due, as contrasted in this case to a telephone communication 23 days after such answer date. In Livermore there had been negotiations between the parties with suggestions of...