Alderman v. Jacobs

VALLÉE, J.

Appeal by plaintiff from an order granting a motion to vacate a default and a default judgment.

The complaint for damages for an alleged assault and battery was filed and summons issued on February 5, 1953. The complaint was not verified. The complaint, summons, and a notice to take defendant’s deposition were served on defendant on April 5, 1953. The notice set April 15, 1953, as the date for the taking of the deposition. On June 10, 1953, the summons was filed with the clerk together with a request by plaintiff for the entry of defendant’s default. His default was entered on June 12, 1953. The matter was set for trial; and on June 18,1953, a trial was had and judgment rendered in favor

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of plaintiff and against defendant. When defendant learned of the judgment his counsel forthwith moved to set aside the default and the judgment.

The evidence and the reasonable inferences therefrom, as shown by the affidavits before the court on the hearing of the motion, will be stated in the light most favorable to defendant. On April 6, 1953, the next day after the complaint, summons, and notice to take his deposition were served on defendant, he delivered them to and consulted with his present attorney. Within four days thereafter defendant’s attorney consulted with plaintiff’s attorney and they agreed the depositions of both plaintiff and defendant would be taken on April 22, 1953, at 10 a. m. at the office of defendant’s attorney. They also agreed that defendant’s answer need not be filed until the deposition had been taken, plaintiff’s attorney stating that a written stipulation would not be necessary. At 10 a. m. on April 22, 1953, defendant, his attorney, and a court reporter engaged by defendant’s attorney were present in the office of defendant’s attorney for the taking of the depositions. Neither plaintiff nor her attorney appeared for the taking of the depositions. About 10:30 a. m. defendant's attorney called plaintiff’s attorney on the telephone and was told by the latter that plaintiff could not appear, but that he (the attorney) was willing to go to the office of defendant’s attorney immediately and take the deposition of defendant. Defendant’s attorney replied that he wanted to take both depositions at the same time and asked for an agreeable date. Plaintiff’s attorney said he was going out of town for a considerable period of time and that he would arrange with defendant’s attorney for a mutually acceptable date on his return. Defendant’s attorney did not hear anything further from plaintiff’s attorney.