Reilly v. Perehinys

Citation33 N.J.Super. 69,109 A.2d 449
Decision Date12 November 1954
Docket NumberNo. A--611,A--611
PartiesHugh REILLY, general administrator, and administrator ad prosequendum of the Estate of Edward James Reilly, deceased, Plaintiff-Respondent, v. George PEREHINYS, Catherine Perehinys, his wife, and Robert Perehinys, Defendants-Appellants. . Appellate Division
CourtNew Jersey Superior Court – Appellate Division

Theodore G. Fitzgeorge, Trenton, for plaintiff-respondent.

George Warren, Trenton, for defendants-appellants (Herr & Fisher, Flemington, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Defendants appeal from a refusal to set aside a judgment for $5,350 taken against them by default in a death action. They claim: first, that this judgment was entered without any proof as to the matter of liability; second, that notice was not given them as required by R.S. 4:56--2(c); and third, that under the circumstances herein related and by force of R.R. 4:62--2(a), relief should have been granted from the judgment.

R.R. 4:56--2(b) does not dispose of the first question--namely, whether proofs should be taken on the issue of liability. The rule--it deals with a default for failure to plead in the case of an unliquidated claim (and that is the situation here)--goes no further than to authorize hearings 'if * * * it is necessary' to establish the truth of any averment by evidence. Cf. Klapprott v. United States, 335 U.S. 601, 611, 624, 69 S.Ct. 384, 93 L.Ed. 266 (1949); United States v. Borchers, 163 F.2d 347 (C.C.A.2 1947). Nor, if you read it literally, is R.R. 4:8--4 determinative of the point. The provision there, that averments in a complaint are admitted when not denied in 'the answer,' has to do only with the effect of a non-denial where there is an answer. But cf. Spencer v. Fairclough, 137 N.J.L. 379, 382, 59 A.2d 11 (E. & A.1948), and former Supreme Court Rule 34 (1938); Martin v. Morales, 102 N.J.Eq. 535, 539, 142 A. 31 (E. & A.1928) and former Chancery Rule 50 (1938).

The matter has been left to practice. At law, unfortunately, the practice over the years has not been uniform. My colleagues, Judges Jayne and Francis, each, when hearing legal actions, made it a practice, if there appeared to him to be any question as to liability, to take some proof of the matter, and then--upon satisfying himself thereon--to submit to the jury only the question of damages. See, too, 2A Waltzinger, N.J.Practice 42 (1954). Other judges, however, have entertained no proof concerning liability. See 1 Bradner, N.J.Law Practice § 243 (1940); White v. Hunt, 6 N.J.L. 330, 331 (Sup.Ct.1796); cf. Creamer v. Dikeman, 39 N.J.L. 195 (Sup.Ct.1877) and Broad and Market National Bank v. Weisen, 99 N.J.L. 331, 332, 124 A. 48 (Sup.Ct.1924), dealing with negotiable instruments.

In equity the practice generally, subject to exceptions, has been to call for evidence to support the allegations of the bill or complaint. Perrine v. Hafeman, 100 N.J.Eq. 33, 134 A. 860 (Ch.1926); Smith v. Howell, 11 N.J.Eq. 349, 352 (Ch.1857); Dickinson's Chancery Precedents, (Rev.Ed.1894) 35, 170; but cf. Martin v. Morales, 102 N.J.Eq. 535, 539, 142 A. 31 (E. & A.1928), supra; N.J.S.A. 2:29--45, repealed; Chancery Rule 199 (1938).

It might be well to observe that we are not dealing with liquidated claims, nor with the matter of damages. Nor with a defendant, who files an answer, but fails to appear at the trial. 49 C.J.S., Judgments, § 198, p. 343; Rules, English Supreme Court of Judicature, Order 36, Rule 31; cf. N.J.S.A. 2:29--49, repealed. Nor with the county district court practice. R.R. 7:9--2; 17 N.J.Practice (Fulop, District and Municipal Courts) 452; cf. N.J.S.A. 2:32--118, repealed. See, too, Torrence v. Van Emburg, 2 N.J.L. 98 (*106) (Sup.Ct.1806) and Cooper v. Mullin, 2 N.J.L. 98 (*107) (Sup.Ct.1806), dealing with the small cause court.

It is true that under the general rule obtaining in most jurisdictions upon a default in pleading, whether in equity or at law, proof of the allegations of the complaint will not be entertained. Young v. Thomas (1892) 2 Ch. 134, 137 (C.A.); Green v. Hearne, 3 T.R. 301, 100 Eng.Rep. 587 (K.B.1789); 1 Tidd's Practice, (4th Am. ed. 1856) *580, 581; Thomson v. Wooster, 114 U.S. 104, 110, 5 S.Ct. 788, 29 L.Ed. 105 (Bradley, J. 1885); Sheehy v. Mandeville, 7 Cranch 208, 11 U.S. 208, 218, 3 L.Ed. 317 (Marshall, C.J. 1812); 49 C.J.S., Judgments, § 212, p. 374; 31 Am.Jur. 517.

But we think the New Jersey practice better--the practice leaving to the discretion of the trial court, in equity or at law, whether or not to take proofs as to the plaintiff's right to relief. Martin v. Morales, 102 N.J.Eq. 535, 539, 142 A. 31 (E. & A.1928), supra; Streeton v. Roehm, 83 Ohio App. 148, 81 N.E.2d 133(Ct.App.1948). This comports with the principle entrusting generally to the trial court's discretion the whole matter, whether or not to enter a judgment by default. 6 Moore's Federal Practice, (2nd ed.) § 55.05(2).

Perhaps too little consideration has been had in legal actions as to the reasons why the law has deposited with the court this discretion as to whether or not to take such proofs. Indeed we may say further--without by any means determining in what situations, if any, the lack of proofs will lead to an avoidance of a default judgment--that there are circumstances which have an especial call upon the court in the exercise of that discretion, as, where the defendant is an incompetent or an infant (proofs then are always taken in England, 1953 Annual Practice, p. 445); or where the defendant has been served by publication (49 C.J.S., Judgments, § 212, p. 374); or where the complaint is quite indefinite (Ohio Central R. Co. v. Central Trust Co. of New York, 133 U.S. 83, 10 S.Ct. 235, 33 L.Ed. 561 (1890)); or the circumstances stir the court's suspicions.

But we see nothing in this action as it stood before the court when judgment was taken, that would call for a reversal now because of its failure to require proofs as to defendants' liability.

That brings us to defendants' second point, namely, that since application for the default judgment was not made within six months after entry of the default, notice of the application should have been given them under R.R. 4:56--2(c). Cf. N.J.S.A. 2:27--118, 193, repealed; former Chancery Rule 200 (1938); Rules, English Supreme Court of Judicature, Order 40, Rule 9. R.R. 4:56--2(c) was adopted, apparently not so much for the purpose of expediting the cause (see R.R. 1:30--3), as perhaps to furnish some protection to a defendant who, while in the process of settling the action or paying off in installments the amount sued for, relies upon the plaintiff not to enter judgment.

In the instant case the application for judgment was apparently made orally after damages were assessed. Surely, the letters written to a subordinate officer here, which asked for a hearing on the assessment of damages and which preceded the oral application for the judgment by five months and one month respectively, could not be said to be the sort of application which satisfies the rule. Notice should therefore have been given under R.R. 4:56--2(c).

Is the judgment then to be vacated? It may be that the provisions for notice in R.R. 4:56--2(b), city of Linden v. Gleffi, 6 N.J. 246, 252, 78 A.2d 257 (1951), are impressed with a stronger policy than the provision here. At any event, we need not now determine whether this judgment must be set aside merely because of a non-compliance with R.R. 4:56--2(c).

Here there are other circumstances, constituting, so defendants say, excusable neglect within the intendment of R.R. 4:62--2(a). And this brings us to the third question, above stated. The action here was against the appellants, George and Catherine Perehinys, and their infant son, Robert, who himself owned and operated the automobile that killed plaintiff's decedent.

The form of summons, sanctioned when the suit was started, called upon the three defendants to file nothing with the clerk, but merely to serve upon plaintiff's attorney 'an answer' to the complaint. One of the adult defendants does not read English; the other reads but imperfectly. With the summons before them, they had their literate daughter write a letter for Robert's signature, addressed to plaintiff's attorney, setting up on theirs and his behalf a lay answer to the...

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