Hughes v. Wright

WHITE, J.

This is an appeal from a default judgment and from an order refusing to set the same aside.

The action was commenced by plaintiff against defendant to quiet title to property, cancel a lease, and to recover certain moneys allegedly due from defendant pursuant to the terms of said lease and of an oral agreement allegedly made in connection therewith.

Service of summons and complaint was made upon the defendant April 30, 1943. He employed counsel (not his present attorney), and an oral agreement was entered into between counsel for plaintiff and defendant extending the time within which the latter might plead to the former’s complaint. The term of such extension is in conflict. The affidavit of plaintiff’s attorney avers that counsel retained by defendant sought and was granted a ten-day stay of time within which to appear in the action. That no further extension of time was given but that plaintiff’s counsel did state to defendant’s attorney that should the latter require additional time and forward to plaintiff’s counsel a written stipulation providing for a further extension, not exceeding ten days, such stipulation would be signed, but that no written stipulation was ever presented. That two personal conferences and several telephone conversations were held by

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respective counsel between service of summons and complaint on April 30 and June 15, 1943. That on or about June 20, 1943, plaintiff’s counsel attempted to communicate with defendant’s attorney by telephone but was advised that the latter was absent from the city. After two or three subsequent telephone calls, the office of defendant’s counsel informed plaintiff’s counsel, on or about June 27th, that he was going to retire from the case. That on June 30th, plaintiff’s counsel received from defendant’s attorney a letter stating that the latter was not going to appear in the case and had so notified his client, the defendant Wright. The letter in question was attached to the affidavit of plaintiff’s counsel and is not denied. The affidavit of plaintiff’s counsel also sets forth that a conversation was had with defendant’s attorney on July 2d in which reference was made to the aforesaid letter and defendant’s counsel was informed that no one else had up to that time appeared for the defendant. That upon this occasion defendant’s counsel replied “I have told him two or three times to get a new attorney, and I feel under no obligation to him.” According to his affidavit plaintiff’s counsel then said “What do you think about my taking a default!” to which defendant’s attorney replied “I can’t ask you not to,” and thereupon plaintiff’s counsel said “If he doesn’t appear by the first of the coming week I’ll have it entered.” According to his affidavit, plaintiff’s counsel then waited until July 7th, or Wednesday of the following week when, no appearance having been made in behalf of defendant, plaintiff’s attorney caused the default of said defendant to be entered. That thereafter, not having heard from the defendant or any attorney representing him, plaintiff’s counsel brought the matter on for hearing by the court on July 20th, following which hearing a default judgment was ordered entered. That on the following day, July 21st, the defendant personally called upon plaintiff’s counsel and was informed by the latter that said judgment had been entered.