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Coulas v. Smith

Supreme Court of Arizona · Civil Procedure

Civil ProcedureDefault judgmentsTrial settingsRule 55Rule 60(c)default judgmentfailure to appear at trialanswer on the merits

Facts

Plaintiff sued defendant and cross-claimant on an open account and a promissory note, and defendant answered the complaint, answered the cross-claim, and filed a counterclaim against plaintiff. The trial date was reset from October 10, 1958, to December 10, 1958, and the record showed that the clerk notified counsel of the new setting, although defendant and his counsel denied receiving notice. When the case was called on December 10, defendant failed to appear in person or by counsel, while plaintiff and cross-claimant appeared and the court heard evidence. Judgment was entered against defendant, and nearly two years later he moved to vacate it.

Issue

When a defendant has answered on the merits and thereby put the case at issue, does his failure to appear at trial permit entry of a Rule 55 default judgment requiring three-day notice under Rule 55(b)? Also, could defendant attack the judgment nearly two years later on the ground that the reset trial date was improper or unnoticed?

Rule

A default judgment under Rule 55 applies when a party has failed to plead or otherwise defend; once a defendant files an answer on the merits and the case is at issue, default is not proper. If that defendant later fails to appear at trial, the plaintiff may proceed, but must prove the case, and any resulting judgment is a judgment on the merits, not a default judgment. Because such a judgment is not void for lack of Rule 55(b) notice, any attack is governed by Rule 60(c)'s six-month limit if the judgment is merely voidable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Lena Ortiz sued Daniel Kerr for unpaid consulting fees. Daniel timely filed an answer denying liability, but neither he nor his lawyer appeared on the scheduled trial date; Lena appeared, presented invoices and testimony, and the court entered judgment for her that afternoon.

Daniel moves to vacate, arguing the judgment was an improper default judgment because he never received three days' notice of an application for default. How should the court rule?

Explanation. Rule 55 applies when a party has failed to plead or otherwise defend. Under the majority opinion, once a defendant answers on the merits and the case is at issue, default is not proper merely because the defendant fails to appear for trial. The plaintiff may proceed, but must prove the case, and the resulting judgment is on the merits rather than by default, so the three-day notice requirement for default judgments does not apply. (Derived from Coulas v. Smith (n.d.).)