Brodowski v. Supowitz

Decision Date14 July 1982
Docket NumberNo. 81-447,81-447
Citation122 N.H. 694,448 A.2d 430
PartiesKaren BRODOWSKI v. Nathan SUPOWITZ et al.
CourtNew Hampshire Supreme Court

Nix & Wendell, Manchester (Grenville Clark, III, Manchester, on the brief), by brief for plaintiff.

Ralph Stein, Salem, by brief for defendant Nathan Supowitz.

KING, Chief Justice.

The defendant Nathan Supowitz appeals the Trial Court's (Wyman, J.) decision denying his motion for leave to file an appearance and an answer more than two years after the return day of the bill in equity and writ filed in an action against him. We affirm.

The plaintiff Karen Brodowski commenced an action against the defendants Nathan Supowitz and Edward Dudley for their alleged failure to complete contracts for real estate transactions. On July 31, 1979, the plaintiff filed a bill in equity, and on August 14, 1979, by a writ of summons, she brought an action at law. Both actions had a return day of September 4, 1979. Because the defendant Supowitz was a Massachusetts resident, the plaintiff served the New Hampshire Secretary of State with the documents pertaining to both actions on August 16, 1979. Additionally, the plaintiff sent copies of the documents by registered mail to Supowitz at his Massachusetts residence. Between that time and October 9, 1981, the actions remained pending. No trial date was scheduled; and, although Supowitz never answered, no default or decree pro confesso was entered against him. On October 9, 1981, counsel for Supowitz filed a motion for leave to file appearance late. The court denied his motion.

The defendant argues that because neither a default nor a decree pro confesso was entered against him, the trial court erred in not allowing him to enter an appearance. We disagree.

Rule 131 of the Superior Court Rules states that "[i]f the defendant ... shall neglect to enter his appearance on the return day ... the bill shall be taken pro confesso, and a decree entered accordingly." (Emphasis added). Likewise, Rule 14 provides that "if the defendant shall neglect to enter an appearance within seven days after the return day of the writ, he shall be defaulted, and judgment shall be rendered accordingly...." (Emphasis added.)

Because the defendant Supowitz failed to respond to either the writ or the bill, under the Superior Court Rules he was defaulted. See Kennedy v. Shaw, 119 N.H. 99, 101, 398 A.2d 834, 836 (1979). The fact that the plaintiff did not assert her rights to entry of a default judgment or decree did not alter the status of the actions. See generally Tessier v. Blood, 122 N.H. 435, ---, 446 A.2d 450 (1982); Kennedy v. Shaw, 119 N.H. at 102, 398 A.2d at 836.

Because the defendant had been defaulted, the trial court, pursuant to the preface of the Superior Court Rules, had discretion in determining whether to remove the default and allow him to enter an appearance. See D'Agincourt v. Anderson Foreign Motors, Inc., 119 N.H. 476, 479, 402 A.2d 1340, 1342 (1979); Brady v. Duran, 117 N.H. 275, 276, 372 A.2d 283, 284 (1977); cf. American Board of Trade, Inc. v. Dun & Bradstreet, Inc., 122 N.H. 344, ---, 444 A.2d 550, 551 (1982). The defendant, in this case, did not allege that his failure to enter a timely appearance was "due to accident, mistake or misfortune ...." See...

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6 cases
  • S.M.W. Seiko, Inc. v. Howard Concrete Pumping Co.
    • United States
    • U.S. District Court — District of New Hampshire
    • October 18, 2001
    ...1152 (1991) (by moving for late entry of appearance and to strike default, defendant submitted to jurisdiction); Brodowski v. Supowitz, 122 N.H. 694, 696, 448 A.2d 430 (1982) (defendant submitted to jurisdiction of the court by moving to file a general appearance). By filing a general appea......
  • Peaslee v. Koenig
    • United States
    • New Hampshire Supreme Court
    • September 10, 1982
    ...within thirty days was a sufficient basis for the admission of the facts as stated. See Superior Ct.R. 54; Cf. Brodowski v. Supowitz, 122 N.H. 694, ---, 448 A.2d 430, 431 (1982) (failure to enter appearance constitutes default under Superior Court Rules 14 and 131). Furthermore, the master ......
  • Sununu v. Clamshell Alliance
    • United States
    • New Hampshire Supreme Court
    • July 14, 1982
    ...discretion and will not be disturbed unless the court clearly abused its discretion or erred as a matter of law. Brodowski v. Supowitz, 122 N.H. 694, 448 A.2d 430 (decided this date); D'Agincourt v. Anderson Foreign Motors, Inc., 119 N.H. 476, 479, 402 A.2d 1340, 1342 (1979); see American B......
  • Barton v. Hayes
    • United States
    • New Hampshire Supreme Court
    • June 6, 1996
    ...still entitled to appeal on this issue. See Morel v. Marable, 120 N.H. 192, 193-94, 412 A.2d 747, 748 (1980); Brodowski v. Supowitz, 122 N.H. 694, 696, 448 A.2d 430, 431 (1982). "The issue of jurisdiction is not only separate but also preliminary, and reasonable procedure demands that it be......
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