Opinion
No. 5066.
Argued October 2, 1962.
Decided October 31, 1962.
1. The imposition of costs on the defendant as a condition to the setting aside of a default verdict was within the Trial Court's discretion where the evidence warranted the finding that the defendant had been given notice of the hearing but failed to attend.
2. A defendant who has entered a pro se appearance and is not otherwise represented is entitled to be notified in advance of hearings.
3. The fact that a joint letter properly addressed was sent by the clerk of court in the ordinary course of business to the attorneys of both parties notifying them of a hearing and received by one of the attorneys is evidence from which it can be found that such a letter was also received by the other.
Action at law to recover for materials allegedly sold by the plaintiff to the defendant. The defendant was not present or represented at this hearing, although it had filed a pro se appearance by its clerk, John L. Southwick, Jr.
After the verdict, the defendant moved to set it aside on the ground that it had not been notified of the hearing. The motion was granted, after a further hearing, conditioned upon payment of $75 costs to the plaintiff, and the defendant excepted.
Further facts appear in the opinion.
Reserved and transferred by Keller, J.
Hamblett, Kerrigan Hamblett and Robert W. Pillsbury (Mr. Pillsbury orally), for the plaintiff.
John L. Southwick, Jr. (by brief and orally), as attorney in fact for the defendant.
The single issue here is whether the Court, in imposing costs as a condition to striking off the default, abused its discretion. Lavoie v. Bourque, 103 N.H. 372, 374.
Since the defendant had entered an appearance, it was necessary, in the circumstances before us, that it be notified of the hearing. Lewellyn v. Follansbee, 94 N.H. 111, 113.
The plaintiff introduced testimony through the clerk of court that "in the ordinary course of business" a joint letter, dated May 11, 1961 properly addressed, was sent to the attorneys of both parties, notifying them of the hearing to be held on May 23, 1961. This was evidence that such a letter was received by the defendant's clerk (1 Wigmore, Evidence, (3d ed.) s. 95) as it indisputably was by the plaintiff's counsel. On the defendant's denial that it received notice, all of the evidentiary facts were to be weighed, and the question then became one for the Presiding Justice to resolve upon the evidence before it. Magazine Repeating Razor Co. v. Weissbard, 125 N.J. Eq. 593; 9 Wigmore, Evidence (3d ed.) ss. 2487 (d), p. 281; 2519 (a); Thayer, Preliminary Treatise on Evidence at the Common Law, pp. 346, 348-349.
Upon the entire record, the Court's conclusion was sustainable and its imposition of costs was not an abuse of discretion.
Exception overruled.
KENISON, C. J., did not sit; the others concurred.