Crittenden v. Crittenden

[300]

BROWN (Gerald), J.

Three brothers, Howard, Phillip and Thomas Crittenden were each left an undivided one-third interest as heirs of certain commercial property under a decree of distribution of their mother’s estate. Being unable to agree among themselves, Howard and Phillip brought a complaint in partition for sale of the premises. The defendant, Thomas, did not answer or make an appearance within the required time, and a default judgment was taken against him and an interlocutory decree of partition was ordered by the court. Defendant’s motion to set aside the default was denied, and he has brought this appeal, contending in three points that he was denied a right to be present at the court hearing by reason of a wrongful taking of the default, that the wrongful default taking deprived him of the right to an accounting, and that the partition action was inequitable because the other two owners were trying to ‘ ‘freeze him out” for their personal gain.

The partition action was filed on September 5, 1962, and defendant was served with summons and complaint on September 11. Defendant wrote plaintiffs’ attorney two letters dated October 5, and October 20, and conferred with him respecting possible settlement. The crucial letter on which the basis for taking the default rests was dated October 23, and was written by plaintiffs’ attorney to defendant. It suggested a method of settling the case, and that if the terms were agreeable, defendant should sign a copy of the letter and return it to plaintiffs’ attorney; otherwise defendant should file an answer or appear in the action before November 5.

After defendant made no appearance, plaintiffs requested entry of default on November 15. A default hearing was conducted on November 26, and an interlocutory judgment of partition was entered on December 3. A month later, defendant moved to set aside the default, accompanying his motion with affidavit, demurrer and proposed answer. Defendant’s affidavit stated that he signed and returned the copy of the letter of October 23. Counteraffidavits filed by plaintiffs’ attorney and his secretary denied receipt of such letter. Defendant’s motion to set aside the default was denied on January 14,1963.

An order denying a motion to vacate a default judgment will not be reversed in the absence of a clear showing of an abuse of discretion by the trial court.