Jenkins v. Arnold, 48537

• Decision Date: 21 January 1978
• Docket Number: No. 48537,48537
• Citation: 223 Kan. 298,573 P.2d 1013
• Parties: Charles B. JENKINS, Appellee, v. Kenny ARNOLD, Appellant.
• Court: Kansas Supreme Court

Page 1013

573 P.2d 1013

223 Kan. 298

Charles B. JENKINS, Appellee, v. Kenny ARNOLD, Appellant.

No. 48537.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

1. The basic principles of law to be followed in determining a motion to set aside a default judgment because of excusable neglect under K.S.A. 60-260(b ) are summarized in the opinion and applied.

2. In order to justify the setting aside of a default judgment because of excusable neglect the defaulting party must show that he has a meritorious defense to the action.

Jack Shelton, Lenexa, was on the brief for appellant.

James L. Wisler, of Hill & Wisler, Mound City, was on the brief for appellee.

PRAGER, Justice:

This is an action brought by a landlord to recover rental payments from a tenant. The defendant failed to file an answer within the time allowed. The plaintiff took a default judgment for the total amount of his claim. This appeal is from the refusal of the trial court to set aside the default judgment.

The facts in the case are undisputed. On September 18, 1975, the plaintiff Jenkins filed a petition against the defendant Arnold seeking to recover judgment in the amount of $1,764.35. The petition alleged that the defendant had taken possession of a mobile home as plaintiff's tenant and had agreed to pay monthly rent plus the electric and propane gas bills. Defendant continued in possession of the mobile home until July of 1975. The total rental obligation owed by the defendant was $2,000 plus electric and propane gas bills amounting to $569.51. The petition alleged payments by the defendant of $805.16, leaving a balance of $1,764.35 due and owing. The defendant was served with summons on September 19, 1975. The defendant's answer day was October 9, 1975. No answer was filed. On October 16, 1975, the plaintiff filed a motion for default judgment and judgment was entered on that day. On October 20, 1975, the defendant filed a motion to set aside the default judgment under K.S.A. 60-260(b ) on the grounds of excusable neglect. On October 30, 1975, a hearing was held on the defendant's motion. Following that hearing a journal entry was filed on November 6, 1975, denying the defendant's motion to set aside the default judgment. The defendant took a timely appeal.

The sole issue presented on the appeal is whether the district court abused its discretion in denying the defendant's motion to set aside the default judgment. Before determining the issue, it would be helpful to consider some of the basic principles to be followed where a motion is filed to set aside a default judgment under K.S.A. 60-260(b ). These principles are set forth and discussed in some detail in Tyler v. Cowen Construction, Inc., 216 Kan. 401, 532 P.2d 1276; Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351; and Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 519 P.2d 730. They are as follows:

(1) The granting of relief from a default judgment under K.S.A. 60-260(b ) rests in the sound discretion of the district court. (Reliance and Montez.)

(2) The exercise of judicial discretion requires that a judge have due regard for what is just and fair under existing circumstances and that he not act in an arbitrary, fanciful, or unreasonable manner. (Reliance and Tyler.)

(3) While there is a need to achieve finality in litigation, judicial discretion must not achieve that end in disregard of "what is right and equitable under the circumstances." (Montez.)

(4) Defaults are not favored in law but become necessary when the inaction of a party frustrates the orderly administration of justice. (Reliance and Montez.)

(5) In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits. (Montez.)

(6) A litigant should not be unnecessarily penalized for the simple neglect of his agent or counsel. (Montez.)

(7) "Inexcusable neglect" is closely akin to "reckless indifference." It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. (Montez.)

(8) "Excusable neglect" as used in K.S.A. 60-260(b ) is not susceptible to clear definition. What constitutes excusable neglect under the statute must be determined on a case by case basis under the facts presented. (Reliance, Tyler, and Boyce v. Boyce, 206 Kan. 53, 476 P.2d 625.)

(9) A motion to set aside a default judgment may be granted whenever the court finds:

(a) That the nondefaulting party will not be prejudiced by the reopening;

(b) That the defaulting party has a meritorious defense; and

(c) That the default was not the result of inexcusable neglect or a willful act. (Montez.)

(10) In Reliance at page 117, the opinion cites 10 Wright and Miller, Federal Practice and Procedure, § 2685, and suggests the following factors to be considered in determining whether a default judgment should be entered:

(a) The amount of money potentially involved;

(b) Whether material issues of fact or issues of substantial public importance are at issue;

(c) Whether the default is largely technical;

(d) Whether plaintiff has been substantially prejudiced by the delay involved; and

(e) Whether the grounds for default are clearly established or in doubt.

(11) Where one of several defendants who is alleged to be jointly and severally liable defaults, judgment should not be entered against him until the matter has been adjudicated with respect to all de...