Desjarlais v. Gilman

• Decision Date: 07 June 1983
• Docket Number: No. 435-81,435-81
• Citation: 143 Vt. 154,463 A.2d 234
• Parties: Gilles DESJARLAIS v. Norma GILMAN and Timothy Gilman.
• Court: Vermont Supreme Court

Page 234

463 A.2d 234

143 Vt. 154

Gilles DESJARLAIS v. Norma GILMAN and Timothy Gilman.

No. 435-81.

Supreme Court of Vermont.

June 7, 1983.

James W. Coffrin and Glen L. Yates, Jr., of Pierson, Affolter & Wadhams, Burlington, for plaintiff-appellee.

Richard A. Gadbois, Enosburg Falls, for defendants-appellants.

Before BILLINGS, C.J., HILL, PECK and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned.

PECK, Justice.

This action arose as a result of a motor vehicle accident in the Province of Quebec, Canada, on September 20, 1977, involving a tractor-trailer owned and operated by the plaintiff, and a Chrysler Cordoba owned by defendant Timothy Gilman, and operated by his mother, defendant Norma Gilman. Timothy was not in the Chrysler at the time of the accident. Plaintiff commenced suit against defendants by his complaint filed on August 10, 1979, in the Franklin Superior Court, having previously obtained personal service on defendants on August 9, 1979. The complaint alleged negligent operation of the Chrysler on the part of Norma, and negligence by Timothy in entrusting his automobile to his mother.

Defendants retained counsel to represent their interests, but, for whatever reason, the attorney never filed an answer. Subsequently, on February 1, 1980, plaintiff moved for default judgment, accompanied by an affidavit of military service as to defendant Norma Gilman only. The judgment order was executed by the court and filed on February 15, 1980.

Defendants retained new counsel, and on July 22, 1980, filed a motion to vacate the judgment. By its order dated March 16, 1981, and filed on March 26th, the court granted the motion as to damages but denied it as to liability. A second motion to vacate dated June 2, 1981, filed June 5th, was also denied. Thereafter, the matter came on for hearing on the issue of damages, and judgment in favor of the plaintiff to recover $17,500.00 was dated and filed on September 16, 1981. Defendants filed a timely appeal from the judgment order. We affirm.

Two issues are presented for review: first, whether the trial court erred in failing to vacate the default judgment as to the liability of defendant Timothy Gilman because no affidavit relating to military service was filed with respect to him; and second, whether the trial court abused its discretion in refusing to vacate the default judgment with respect to liability.

V.R.C.P. 55(b)(4) provides that no judgment by default shall be entered until an affidavit is filed by plaintiff or his attorney showing that defendant is not in the military service. Nevertheless, the rule is not a jurisdictional obstacle to a default judgment, cf. Snapp v. Scott, 196 Okl. 658, 661, 167 P.2d 870, 873 (1946); therefore, since the issue has been raised here for the first time it is not necessary that we consider it; ordinarily we will not do so. Montgomery Ward Co. v. Horgan, 141 Vt. 315, 318, 448 A.2d 151, 153 (1982). However, there is nothing in the record here indicating that Timothy was in service at any material time, and defendants' counsel acknowledged with proper candor during oral argument that he was not. Accordingly, he was not a person entitled to the protection afforded by the rule or by the so-called Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.App. § 520(4), the federal law which V.R.C.P. 55(b)(4) is designed to implement in this state. In the absence of a showing that defendant was in the military service when the default judgment against him was entered, the judgment will not be vacated for a failure by plaintiff to file an affidavit. Borrego v. Palacio, 445 S.W.2d 620, 622 (Tex.Civ.App.1969). There was no error in the trial court's refusal to vacate the default judgment as to defendant Timothy Gilman based on plaintiff's failure to file an affidavit of nonmilitary service applicable to him.

Our holding above on the first issue clears the way for consideration of the remaining question, for had we ruled in favor of defendant Timothy Gilman on the affidavit issue, the claim of an abuse of discretion would have become moot as to him.

A motion for relief from judgment brought under V.R.C.P. 60(b)(2) is addressed to the sound discretion of the trial court, and its ruling will not ordinarily be disturbed unless it clearly appears from the record that such discretion was withheld or abused. Dudley v. Snyder, 140 Vt. 129, 131, 436 A.2d 763, 764 (1981); Zinn v. Tobin Packing Co., 140 Vt. 410, 414, 438 A.2d 1110, 1113 (1981).

A judgment by default effectively deprives a defendant of an opportunity to have the merits of his position determined through the normal adversary judicial process. Trial courts should, therefore, in the interests of justice and fairness, be concerned for the consequences to both parties when acting on a 60(b) motion to vacate such a judgment. Particularly is...