Cockrell v. World's Finest Chocolate Co., Inc.

• Decision Date: 09 September 1977
• Parties: Ranny Lee COCKRELL v. WORLD'S FINEST CHOCOLATE COMPANY, INC., a corporation. SC 2144.
• Court: Alabama Supreme Court

Page 1117

349 So.2d 1117

Ranny Lee COCKRELL v. WORLD'S FINEST CHOCOLATE COMPANY, INC., a corporation.

SC 2144.

Supreme Court of Alabama.

Sept. 9, 1977.

Rehearing Denied Sept. 30, 1977.

James H. Lackey, Mobile, for appellant.

Mayer W. Perloff, Mobile, for appellee.

BLOODWORTH, Justice.

Default judgment was entered against defendant, Ranny Cockrell, in favor of plaintiff, World's Finest Chocolate Company, Inc., for $30,647.32 and costs. Defendant filed, and the court denied, a motion to set aside the default judgment. Later, defendant filed, and the court denied, a motion to reconsider the denial of his motion to set aside the default judgment. Defendant appeals, and plaintiff moves to dismiss the appeal with prejudice. The motion to dismiss the appeal is denied. The trial court's denial of defendant's motion to reconsider the denial of his motion to set aside the default judgment is reversed and remanded.

MOTION

Plaintiff contends that defendant's notice of appeal, which was filed on October 25, 1976, was not filed within 42 days after the court's entry of final judgment for plaintiff or the court's denial of defendant's motion to set aside the default judgment. Rule 4, Alabama Rules of Appellate Procedure. Judgment by default was entered on June 17, 1975, and the motion to set aside the judgment was filed on August 14, 1975, and was denied on October 29, 1975. Rule 60(b), Alabama Rules of Civil Procedure. Defendant's motion to reconsider the denial of his motion was filed on October 31, 1975, and was denied on September 29, 1976, after several hearings before the court ore tenus. Plaintiff contends that this order is not an order from which an appeal may be taken. We disagree.

The order in question, like the order denying the motion to set aside the judgment, is a denial of a Rule 60(b) motion. Although a motion under Rule 60(b), ARCP, "does not affect the finality of a judgment or suspend its operation" and thus does not extend the time for taking an appeal, an order denying such a motion is appealable. An appeal of an order denying a motion under Rule 60(b) presents for review the correctness of the order, not the correctness of the final judgment which the movant seeks to have set aside. Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 411, 318 So.2d 271 (1975); Wright & Miller, Federal Practice and Procedure: Civil § 2871.

Plaintiff contends also that this appeal should be dismissed because defendant's notice of appeal, by failing to state which order or judgment is being appealed, fails to comply with Rule 3(c), ARAP. The notice states:

"Notice is hereby given that RANNY LEE COCKRELL appeals to the above-named court from the order entered in this cause."

Rule 3(c), ARAP, provides, inter alia, that the notice of appeal ". . . shall designate the judgment, order or part thereof appealed from . . . ." It is true that defendant's notice of appeal does not state whether the appeal is being taken from the default judgment, the order denying the motion to set aside the judgment, or the order denying the motion to reconsider denial of the motion to set aside the judgment. This, however, is not fatal to defendant's appeal, nor is it reason to dismiss it.

The time for taking an appeal from the default judgment and from the denial of the motion to set aside expired long before the notice of appeal was filed. Consequently, there is only one order from which this appeal could have been taken the denial of the motion to reconsider the denial of the motion to set aside the judgment.

Under Rule 2(a), ARAP, dismissal of an appeal from an appealable order is mandatory only where notice of appeal was not timely filed. In other cases of failure to comply with the rules, dismissal is discretionary. Because Rule 1, ARAP, mandates that these rules ". . . shall be construed so as to assure the just, speedy and inexpensive determination of every appellate proceeding on its merits," and because the deficiency in defendant's notice of appeal has not left this Court or plaintiff uncertain as to which order is being appealed, we decline to dismiss the present appeal.

MERITS

On April 3, 1975, plaintiff filed suit against defendant, a former employee on open account, for money had and received, and for misrepresentation. On April 10, 1975, defendant was served with a copy of the summons and complaint.

On May 8, 1975, defendant filed with the circuit court a document containing the name of the court, the style of the case, the case number, and defendant's signature. The document was entered upon the docket as "Answer of Defendant," and a copy was forwarded to plaintiff's attorney. The document stated that defendant's attorney would be replying in a few days, that defendant had been out of town since having been served, and that his attorney would be in contact very soon.

On June 17, 1975, on motion of plaintiff and without any notice to defendant, the court entered a default judgment.

On this appeal, defendant contends that the document which he filed on May 8, 1975, constituted an appearance in the action and entitled him to three days' written notice of the application for a default judgment. Rule 55(b)(2), ARCP. He contends further that plaintiff's failure to serve such notice rendered the default judgment void. Alternatively, defendant contends that the judgment is voidable for mistake, inadvertence, surprise, or excusable neglect and that the trial court erred in refusing to set it aside. Rule 60(b)(1), ARCP.

Plaintiff contends that in order to be entitled to relief under Rule 60(b) the movant must allege and prove facts which would constitute a good and meritorious defense and that defendant did not do so.

We hold that the document filed by defendant on May 8, 1975, constituted an appearance and that defendant was entitled to the "3 days" notice required by Rule 55(b)(2), ARCP.

An appearance in an action involves some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court. Port-wide Container Co., Inc. v. Interstate Maintenance Corp., 440 F.2d 1195 (3rd Cir. 1971); H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256, 432 F.2d 689 (1970); Anderson v. Taylorcraft, Inc., 197 F.Supp. 872 (W.D.Pa.1961). See also Wright & Miller, supra at § 2686; Anno., 27 A.L.R.Fed. 620; Anno., 73 A.L.R.3d 1250.

The document which defendant filed with the court on May 8, 1975, clearly indicated an intention to submit to the jurisdiction of the court and to defend the action. Plaintiff does not dispute defendant's contention that he had appeared in the action and was entitled to "3 days" notice of application for entry of default.

We hold further that failure to give the required notice in this case requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not. Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963); Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968). In so holding, we do not decide whether a default judgment entered without the required notice is void or merely voidable.

It is the view of Wright & Miller that lack of notice should not automatically entitle the defaulting party to relief but should be one of the factors which the court considers when it exercises its discretion in ruling on a motion to set aside the judgment. Wright & Miller, supra at § 2695. See 6 Moore's Federal Practice P 55.05(3). We do not think this is the better view. Wright & Miller offer no reason for regarding this as the preferable view, and the courts are not in agreement as to the effect of failure to give notice. See Anno., 51 A.L.R.2d 837.

We think that our approach is more consistent with our policy which favors the determination of cases on the merits and disfavors default judgments. Moreover, our rule makes for certainty in the law namely that the notice required by Rule 55(b)(2), ARCP, must be given when the defaulting party has filed an appearance, as here, and has indicated a clear purpose to defend the action.

The dissent makes two assertions, to which we direct a short response.

First, is the notion that " . . . the 'Motion to Reconsider' should be considered as a post-judgment motion . . . deemed denied, under Rule 59.1, ARCP, 90 days after it was filed . . . ." The answer is that both parties and the trial judge, below and here, treated the motion as a Rule 60(b) motion. Also, Rule 59.1 states that only post-trial motions filed pursuant to Rule 50, 52 or 59 shall remain pending longer than 90 days. Rule 50 refers to motions for directed verdict and N. O. V., Rule 52 to findings by the Court, and Rule 59 to motions for new trial. No mention is made in Rule 59.1 of a Rule 60(b) motion. The judge held hearings on this motion from the time it was filed until it was acted on September 29, 1976.

Second, it is suggested that our decision will "further delay the disposition of this action, (and) be more expensive." We think not. If a defendant has entered an appearance he is entitled to the three days' notice, because the Rule says so, and if the trial courts ensure, as we know they will, that the three days' notice is given, the merits will be reached, delay will be minimized, and justice will be served.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

TORBERT, Chief Justice (dissenting):

The motion to set aside the default judgment, entered June 17, 1975, was filed August 18, 1975, and was denied October 20, 1975. A motion to reconsider the denial of the motion to set aside the default judgment (the second motion) was filed October 31, 1975, and was denied September 29, 1976, some 11 months later. The majority holds that this appeal was taken from the denial of the second motion rather than the first motion to set aside the...