Barry v. Rodgers

ASHBURN, J.

Defendants Willard K. Rodgers and Rachel L. Rodgers purport to appeal from an order denying their motions to vacate and set aside a default and a default judgment.

Plaintiff brought an action against appellants Rodgers and numerous other defendants for false arrest, false imprisonment and malicious prosecution. The ease against the other defendants was disposed of by dismissal and summary judgment, and they are not here involved.

Bach of the appellants, on May 18, 1955, filed a timely answer to the first amended complaint, denying generally all allegations. Prior thereto a demurrer to the complaint had been filed by other defendants (county employees). This demurrer having been sustained, plaintiff filed and apparently served his second amended complaint on June 20, 1955. Appellants did not answer this pleading and on June 28, 1955, their default was entered by the clerk. On January 9, 1957, the court heard the evidence of plaintiff, at the conclusion of which a minute order was made: “Judgment is ordered for plaintiff for the sum of $6000.00. Plaintiff is directed to prepare the judgment. The clerk is ordered to enter the decree.”

The motion of appellant Willard K. Rodgers to vacate default was filed on November 14, 1960. This appellant avers that he first became aware of the default and the default judgment on September 7, 1960, when he received a telephone call from the Royal Howard Collection Agency. On December 8, 1960, this ruling was made: “In this matter heretofore submitted, the court now makes its order: Defendant’s motion is denied. Counsel notified by mail.” The record shows Willard K. Rodgers appearing in propria persona in the matter. On December 20, 1960, he filed his notice of appeal from this order, and the clerk’s transcript was aeeord7 ingly prepared and filed.

Rachel L. Rodgers, on June 21, 1961, through counsel requested and was granted permission to file a supplemental clerk’s transcript, said supplemental record to consist of her

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notice of appeal which had not been included in the appeal record of Willard K. Rodgers. Her supporting declaration states that “on January 17, 1957, plaintiff obtained a default judgment against my husband and myself,” and that she filed a “Notice of Motion to Vacate Default Judgment” which motion was denied; that her husband, Willard K. Rodgers filed a request for clerk’s transcript on appeal which she thought would be sufficient for both appeals. However, in her application for leave to augment she did not request the inclusion of anything other than her notice of appeal. Except as stated in her aforesaid declaration, the record does not show that a motion to vacate was ever filed by her, there is no affidavit on her behalf in support of such a motion, and, as indicated, the order of December 8, 1960, purports only to be a denial of the motion of Willard K. Rodgers. Obviously, the appeal of Rachel L. Rodgers must be dismissed for want of supporting record (authorities