King v. Brown, 11

• Decision Date: 28 March 1967
• Docket Number: No. 11,11
• Parties: James KING v. Carl BROWN. Appeal
• Court: Rhode Island Supreme Court

Page 589

227 A.2d 589

102 R.I. 42

James KING v. Carl BROWN.

Appeal No. 11.

Supreme Court of Rhode Island.

March 28, 1967.

John S. Brunero, Providence, for plaintiff

Harry F. McKanna, Jr., West Warwick, for defendant.

OPINION

JOSLIN, Justice.

This action of trespass for assault and battery was commenced in the superior court. No entry of appearance, demurrer or plea was filed by or on behalf of the defendant. The plaintiff's motion for a nil dicit judgment was granted and on October 11, 1965 the case was declared defaulted, and following oral proof of claim a judgment in the amount of $7,500 was entered against the defendant. Ten days later a justice of the superior court granted defendant's motions, three in number, but considered here as if one, to remove the judgment entered by default, to remove the nil dicit judgment and to recall the execution which had been issued on that judgment. The case is now here on the plaintiff's exception to that ruling.

The defendant applied for relief under G.L.1956, § 9-21-2, ¹ which at that time permitted the superior court to vacate a default judgment at any time within six months after its entry 'for cause shown,' that is to say, upon a showing by a defendant either by affidavit or by evidence that the default had been entered by reason of accident, mistake or unforeseen cause, Wright v. DelGiudice, R.I., 213 A.2d 811, Milbury Atlantic Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458, 118 A. 737, and that he was possessed of a prima facie meritorious defense which in good faith he desired to present if the case were reinstated for trial. Fiske v. Marino, R.I., 219 A.2d 471; McLeod v. Fleetwood Motor Sales Inc., 83 R.I. 447, 118 A.2d 921; Lombardi v. Rao, 88 R.I. 226, 146 A.2d 12.

Here defendant elected to offer no testimony at the hearing on his motion, apparently relying instead on the assertions made in the affidavit attached to that motion to fulfill his obligation to show cause. He there states in substance that he was acting in self defense and that the case was not answered even though he 'did turn over this writ of summons to his attorney * * * and did engage * * * as attorney to represent him in this matter.' To find cause for removing a default judgment on such meager assertions was error.

This court has consistently held that neglect or inattention of counsel does not in and of itself constitute accident, mistake or unforeseen cause and we have refused to relieve a litigant from the adverse consequences flowing solely from his counsel's negligent failure to comply with statutory proscriptions. This has been our attitude not only where, as in this case, counsel has failed to answer or enter his appearance in a case, ² McKeough v. Gifford, 30 R.I. 192, 73 A. 1085, but in addition where he has neglected within the time limit prescribed by statutes comparable to § 9-21-2 to prosecute a bill of exceptions, ³ Monti v. Providence Journal Co., 96 R.I. 175, 190 A.2d 482; Leach v. Teutonia Ins. Co., R.I., 92 A. 554; Allen & Reed v. Russell, 33 R.I. 422, 82 A. 129; Jackvony v. Colaluca, 29 R.I. 441, 72 A. 289; or to return a writ, Di Mauro v. Samson, 88 R.I. 222, 145 A.2d 761; National Casket Co. v. Montgomery, 52 R.I. 158, 158 A. 723; or to perfect an appeal from an order or decree of a probate court, Bolster v. Bolster, 35 R.I. 367, 87 A. 23; Needle v. Cohen, 61 R.I. 84; or to 'simply neglect, by reason of forgetfulness, to take the necessary steps to file a petition for new trial,' Haggelund v. Oakdale Mfg. Co., 26 R.I. 520, 60 A. 106. (See, however, Burrough v. Hill, 15 R.I. 190, 2 A. 382, apparently contra.); or to file a claim of appeal from a decree of the superior court. Johnson v. Randall, R.I., 92 A. 829.

Notwithstanding this line of decisions, our concern that no injustice shall be worked to a litigant by denying him his day in court prompts us to suggest upon our own motion that perhaps the changes made in § 9-21-2 by P.L.1965, chap. 55, sec. 36, point to the advisability of our reexamining in the light of those changes our position on the negligence-of-counsel question. Insofar as here pertinent that chapter, whose passage and effective date were concomitant with the adoption and promulgation of new rules of civil procedure in the superior court, created new guidelines for determining whether a default judgment should be removed. Instead of the old § 9-21-2 'cause shown,' or 'accident, mistake or unforeseen cause' standard, we now have a test modeled after the Federal Rules of Civil Procedure which was in turn borrowed from the Field Code in California. The new guides are 'mistake, inadvertence, surprise, or excusable neglect * * *.' Although enacted prior to the superior court hearing of the motion in this case, the January 10, 1966 effective date fell well within the period during which defendant's motion, if its filing had been delayed, could have been heard in that court and also preceded the arguments in this court.

In this rather unusual situation we believe that the ends of justice will be better...