Rogers v. Lyle Adjustment Co.

• Decision Date: 28 June 1962
• Docket Number: No. 7042,7042
• Citation: 372 P.2d 797,70 N.M. 209,1962 NMSC 89
• Parties: Ben T. ROGERS, Plaintiff-Appellee, v. LYLE ADJUSTMENT COMPANY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 797

372 P.2d 797

70 N.M. 209

Ben T. ROGERS, Plaintiff-Appellee, v. LYLE ADJUSTMENT COMPANY, Defendant-Appellant.

No. 7042.

Supreme Court of New Mexico.

June 28, 1962.

Sheehan, Duhigg & Christensen, Albuquerque, for appellant.

Dan B. Buzzard, Clovis, for appellee.

NOBLE, Justice.

Two principal questions are presented by this appeal: (1) Under Rule 55 of the Rules of Civil Procedure, may a default judgment be entered after the filing of a late pleading; and (2) did the trial court abuse its discretion in refusing to vacate the default judgment and permit the filing of an answer?

Appellant (defendant below) was served with process in a civil action on April 17, 1961, and its appearance was entered by its attorneys on May 6. On May 24, 1961, no further pleading having been filed by appellant, notice was filed and served on counsel for appellant that appellee (plaintiff below) would apply to the court for default judgment on June 1. Appellant filed its general denial on May 29 but failed to appear for the hearing on the motion at the time set on June 1. After the taking of testimony in the absence of counsel for appellant, default judgment was entered on June 8. Thereafter, on June 13, 1961, appellant orally moved the court to vacate the default judgment and permit the filing of its answer. A similar written motion was filed and argued on June 22. There was also filed a motion to vacate the default judgment as irregularly entered. All motions were denied and this appeal results.

Appellant asserts that the court may not enter a default judgment so long as a pleading by defendant remains on file, even though such pleading was untimely filed and relies on Ortega v. Vigil, 22 N.M. 18, 158 P. 487, and Animas Consolidated Mines Co. v. Frazier, 41 N.M. 389, 69 P.2d 927. Both of these decisions were prior to the adoption of our Rules of Civil Procedure and are not controlling.

Rule 6(b) is as follows:

'When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done.'

Rule 6(b) places the exclusive control as to enlargement of time for pleading in the court, not with counsel, and here no motion to permit a late filing was made. Loew's, Inc. v. Sanfrebob Theatre Corp., 8 Fed.Rules Service 840; Orange Theatre Corp. v. Rayherstz Amusement Corp. (C.C.A. 3), 130 F.2d 185.

Rule 55(a) reads:

'When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.'

Subsection (b) of Rule 55 provides for default judgments. Our Rule 55 (a) is identical in language with the federal rule. Entry of default by the clerk is merely a formal matter and is entered as a matter of course upon the default being called to the attention of the clerk. U.S. for and in Behalf of Federal Housing Administration v. Jackson, D.C., 25 F.Supp. 79. However, although the entry of default should normally be by the clerk, the court has power to do so. Moore's Federal Practice, Vol. 6, Sec. 55.02, p. 1807; 3 Barron & Holtzoff-Federal Practice and Procedure, Sec. 1212. Interstate Commerce Commission v. Smith, D.C., 82 F.Supp. 39; U.S. v. Jackson, supra. In the instant case, the record does not disclose a default entered by the clerk but the default judgment itself declares the default. We think that since entry of default is only a formal matter that entry of the default and the default judgment may be simultaneous and by a single instrument.

Rule 55(c) provides:

'For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).'

It is clear that a party in default for failure to plead or otherwise defend the action must apply to the court for relief under Rule 55(c) before he can plead in the cause. 3 Barron & Holtzoff, Federal Practice and Procedure, Sec. 1212; 6 Moore's Federal Practice, Sec. 55.03; Loew's, Inc. v. Sanfrebob Theatre Corp., supra; Orange Theatre Corp. v. Rayherstz Amusement Corp., supra; Moffitt v. Asher (Ky.1957), 302 S.W.2d 102. An appearance alone where there has been no pleading does not prevent a party from becoming in default. 6 Moore's Federal Practice, Sec. 55.02, p. 1807, but if such appearance is entered prior to default, the party is entitled to three days' notice of application to the court for a default judgment. Rule 55(b), Rules of Civil Procedure. As we construe the rule, the purpose of the three-day notice is not to give the party time within which to plead defensively, but to seek to set aside the default as provided by Rule 55(c) and for enlargement of time within which to plead in accordance with Rule 6(b).

Notice that appellee would apply to the court for default judgment as provided by the rule was given in this case and appellant failed to appear at the time fixed. The court heard appellee's evidence and entered the default judgment for the amount the court found to be due. Default judgment was properly entered notwithstanding that after such notice and before entry of judgment, appellant filed a general denial. No application was made for enlargement of the time within which to plead as required by Rule 6(b) of the Rules of Civil Procedure. Loew's, Inc. v. Sanfrebob Theatre Corp., supra; Orange Theatre Corp. v. Rayherstz Amusement Corp., supra.

Appellant thereafter orally moved the court to vacate the default judgment on the ground that an answer was pending at the time of entry of the judgment and on the ground of excusable neglect. The motions were denied and appellant later filed a written motion pursuant to Rules 55(c) and 60(b) of the Rules of Civil Procedure asking that the judgment be vacated and alleging (1) that counsel for appellant were unable to secure certain information; (2) that it was their understanding that default judgment could not be entered if they had entered an appearance provided an answer was filed prior to entry of default judgment even though untimely filed; (3) that appellant had a meritorious defense, and, that no prejudice resulted from the delay. This motion was likewise denied and appellant asserts that its denial was an abuse of discretion by the court.

A default judgment may be set aside by the court (Rule 55(c)) in accordance with Rule 60(b) for '(1) mistake, inadvertence, surprise, or excusable neglect * * * or (6) any other reason justifying relief from the operation of the judgment.' The action of the trial court, under Rule 60(b) of our Rules of Civil Procedure, is discretionary. Adams & McGahey v. Neill, 58 N.M. 782, 276 P.2d 913, 51 A.L.R.2d 830. The trial court specifically found that appellant failed to appear on June 1, 1961, after notice that judgment by default would be applied for on that date. By its motion to vacate the default judgment appellant alleged that its failure to timely...