d'Agincourt v. Anderson Foreign Motors, Inc.

• Decision Date: 20 June 1979
• Docket Number: No. 79-035,79-035
• Citation: 119 N.H. 476,402 A.2d 1340
• Parties: Raymond G. d'AGINCOURT v. ANDERSON FOREIGN MOTORS, INC.
• Court: New Hampshire Supreme Court

Page 1340

402 A.2d 1340

119 N.H. 476

Raymond G. d'AGINCOURT v. ANDERSON FOREIGN MOTORS, INC.

No. 79-035.

Supreme Court of New Hampshire.

June 20, 1979.

Hinkley & Donovan, Lancaster (Walter D. Hinkley, Lancaster, orally), for plaintiff.

Myers & Brown, Concord (Howard B. Meyers, Concord, orally), for defendant.

GRIMES, Justice.

The issue in this action in debt is whether the trial court's denial of defendant's motion to vacate and strike the default judgment against it constituted an abuse of discretion and denied defendant due process of law. We answer both questions in the negative and uphold the decision of the trial court.

On December 7, 1977, plaintiff brought suit against defendant, a foreign corporation, by service on the secretary of state in compliance with RSA 300:12. The secretary mailed a copy of the writ to the defendant at 394 Washington Street, Woburn, Massachusetts, the address furnished by the plaintiff. Compliance with RSA 300:12 is not disputed. The writ was duly returned on the first Tuesday in January 1978. Defendant failed to appear, and on February 7, 1978, a default judgment was entered against it in the amount of $16,123.47, the amount supported by plaintiff's affidavit of damages. On March 6, 1978, defendant filed a motion to vacate the judgment and strike the default. Following a hearing, the motion was denied and defendant's exception was transferred by Cann, J.

Plaintiff's writ alleges that he purchased a 1976 Jaguar from defendant in December 1976 for a total price of $15,331; that it was represented to be new and free from defects; that the vehicle was for one reason or another not useable as a means of transportation because of the necessity to return it to defendant and other garages for transmission, engine and other problems; that on November 19, 1977, he rescinded the sale and returned the car to the defendant at its place of business in Woburn; and that as a result he suffered damages in the sum of $17,000.

Defendant's motion to vacate the judgment and strike the default alleges that on October 1, 1977, its assets were sold to a new corporation, 128 Imported Car Company Inc., (hereinafter 128 Imported Car); that it was left unsettled which party would be responsible for dealing with consumer claims regarding defects in Jaguars; that one Ross Anderson, defendant's chief operating officer, had little or nothing to do with the business carried on in Woburn after October 5, 1977; and that after October 1, 1977, all mail relating to Anderson Foreign Motors, Inc., was to be forwarded to Ross Anderson at his home in Andover, Massachusetts. Defendant further alleged that it, through its president, Ross Anderson, first became aware of the present suit on February 3, 1978, while Anderson was discussing with 128 Imported Car which corporation would be responsible for what claims; that its Massachusetts counsel was furnished the writ on February 6, 1978, but was unable to proceed because of a blizzard which paralyzed the Boston area; that on February 14, 1978, New Hampshire counsel was contacted; and that on February 17, 1978, New Hampshire counsel wrote the clerk of court, stating that a motion would be filed. The motion states that "(d) efendant has a Good and valid defense to the within action." (Emphasis added.)

Superior Court Rule #14, RSA 491:App. R. 14 (Cum.Supp.1978), in pertinent part provides:

N(o) . . . default shall be stricken off, except by agreement, or by order of the Court . . . upon motion and affidavit of defense, specifically setting forth the defenses and the facts on which the defense is based.

The motion in the present case was supported by an affidavit of Ross Anderson, but the motion and affidavit do not specifically set forth defendant's alleged "good and valid defense" or the facts upon which...