Jorgensen v. Burrows

WOOD (Fred B.), J. Plaintiffs seek to set aside a default judgment which abrogated their contract to sell an apartment business to the defendants herein and awarded the latter monetary recovery in the amount of $8,705 as actual and $20,000 as punitive damages.

Defendants’ general and special demurrers to the complaint herein were overruled. They filed their answer and the cause came on for trial. Defendants moved and the trial court granted a motion for judgment on the opening statement of plaintiffs.*

Our examination of the record convinces us that the opening statement presented questions of fact concerning which plaintiffs are entitled to present evidence.

[640]From the opening statement and the complaint (which was made a part of the opening statement) it appears: plaintiffs herein were served with summons in the other action. They went to an attorney who obtained from the attorney for defendants herein (plaintiffs in the other action) an indefinite extension of time to plead. Shortly thereafter plaintiffs and their attorney mutually agreed they should retain other counsel because he represented other parties who had interests potentially adverse to plaintiff. On November 17, 1954, their attorney mailed plaintiffs a letter (also made a part of the opening statement) in which he said: ' ‘ This is to confirm my telephone conversation with Mrs. Jorgensen on Monday in which it was understood that you people are going to employ another firm of attorneys to represent you in connection with the above matter, and that our charge for services to-date would be $25. In that conversation I pointed out to Mrs. Jorgensen it was imperative that an answer or other pleading be filed in response to the plaintiff’s complaint and that she would make arrangements to call upon me or Mr. Lerer to pick up the papers which you gave us. We have been keeping the time to plead open but cannot keep the case in suspense indefinitely. I discussed our telephone conversation with Mr. Lerer and he will be happy to see either of you when you come in. I wish to stress the fact it is important that you procure legal representation at once so your rights are not prejudiced. I suggest you make an appointment with either Mr. Lerer or myself as soon as possible.”

December 22, 1954, plaintiffs’ former attorney filed an answer on behalf of the other defendants in the other action.

January 26, 1955, plaintiffs’ default was entered.