Opinion
No. 3574.
Decided June 4, 1946.
A defendant in default for lack of appearance is not entitled to notice of application for a judgment or the hearing to assess damages. The Trial Court may, in his discretion, deny an application for a jury trial on the assessment of damages after default (R. L., c. 390, s. 1) when such request is not seasonably made or if the right thereto has been otherwise waived. Where the default of the defendant was due solely to his own neglect and where he had no reasonable grounds for expecting notification of a hearing to assess damages, there was no abuse of discretion as a matter of law in the Trial Court's refusing to strike off the default as permitted by R. L., c. 390, s. 2.
CASE, to recover damages for personal injuries occasioned to the plaintiff by defendant's dog. Process was duly served on the defendant and entered in court. The defendant, having entered no appearance, default was recorded and the case was continued for judgment. At the subsequent term, the defendant being defaulted, an assessment of damages in the amount of $250 was made by the Judge upon oral evidence produced by the plaintiff before him in court without further notice to the defendant and in his absence. Judgment was entered for plaintiff and levy of execution commenced against defendant's real estate.
Thereafter the defendant consulted an attorney who filed motions with supporting affidavits for leave to appear, to strike off the default and to vacate judgment and stay the sale upon the levy of execution. Upon hearing, at which the defendant, his wife and the deputy sheriff who served the process was heard, and argument of counsel for the parties, the Court granted the motion for leave to appear and stayed the execution sale pending transfer to this court. Defendant's exceptions to the denial of his motions to strike off the default and to vacate the judgment were transferred by Blandin, C. J., who made the following findings: "The Court finds the defendant failed to appear solely through his own neglect. He had no reasonable grounds for believing the case would not be pressed, quite the contrary, or that plaintiff's counsel or anyone else would notify him of the hearing held [to assess damages] on January 23rd, 1945.
"Granting that for a few days in early January, 1945, he was incapacitated, yet service was made upon him on June 29th, 1944, and he did nothing until the above motions in his behalf were filed by his counsel on March 5th, 1945."
As exhibits in the case are letters from the defendant to the plaintiff's counsel, written the day service was made upon the defendant, requesting plaintiff's counsel "to take the writ off of this place at once" and the reply, dated the next day, that "the only thing to do is to let the law take its course."
While the case was pending in this court, defendant moved for a postponement of the hearing in order to amend the reserved case in the Superior Court, which motion was granted. After hearing in the Superior Court the defendant was allowed to amend his motion to vacate the judgment on the additional ground that the assessment of damages by the court was illegal and void in that there was no notice or opportunity for assessment of damages by a jury and in that connection then filed a motion for assessment of damages by jury. The motion to vacate the judgment as amended was denied, and in view thereof no action was taken by the Court on the motion to assess damages by a jury. The amendment to the reserved case was transferred by Goodnow, J., on defendant's exceptions.
Carr Gifford (by brief), for the plaintiff.
Murchie Murchie (Mr. Alexander Murchie orally), for the defendant.
The assessment of the damages by the Court, without a jury or further notice to the defaulting party, was one of the discretionary methods sanctioned by our procedure. "To the three modes of assessing damages upon default enumerated by Judge Bell may be added a fourth; namely, where the assessment is made by the judge upon oral evidence produced before him in court. In such cases, of course, there would be no evidence to be filed, and it is therefore important that the docket or record should show the fact that the assessment was made upon oral testimony produced before the court." Collins v. Walker, 55 N.H. 437, 438. The pertinent statute (R. L., c. 390, s. 1) has been construed to require a jury trial when "either party makes application to the court for such a hearing" (West v. Whitney, 26 N.H. 314, 315) or "on motion of either party" (McIntire v. Randolph, 50 N.H. 94, 102), providing the request is made in due time (Price v. Dearborn, 34 N.H. 481, 487) and is not otherwise waived. See Redlon Co. v. Corporation, 91 N.H. 502, 506. The facts in this case differ from the Collins case, supra, 439, where the default judgment was vacated because entered "without any assessment of said damages by a jury, by the court, or in any way by order of, or under or by direction of, the court."
Neither the statutes nor the rules of the Superior Court require notice to a defendant in default for lack of appearance of the assessment of damages. R. L., c. 390, s. 1; Rule 6, 78 N.H. 690; Rule 8, 93 N.H. Appendix. "Where a defendant has been defaulted after he has made an appearance in the action, it is generally necessary to notify him of the hearing to make the necessary proof and assess the damages. But a defendant in default for lack of appearance is not entitled to notice of application for a judgment or the hearing to assess damages." 3 Freeman, Judgments (5th ed.) s. 1291. Governor and Council v. Morey, 78 N.H. 125, 130; Hutchinson v. Railway, 73 N.H. 271; United c. Ins. Co. v. Corporation, 82 N.H. 321, 323.
It is contended that there has been an abuse of discretion by the Superior Court in refusing to strike off the default which is permitted by R. L., c. 390, s. 2 "at the discretion of the court or justice" and by Rule 8 of the Superior Court. 93 N.H. Appendix. Competing considerations are involved in such a determination. It is important that cases be decided on their merits, that a party have his day in court and that rules of practice and procedure shall be tools in aid of the promotion of justice rather than barriers and traps for its denial. It is likewise important that litigation be concluded finally and with reasonable dispatch and that the dilatory shall not be rewarded at the expense of the diligent. These considerations are necessarily encompassed within the touchstone of our practice — as justice may require. In view of the findings of the Court that the default was due solely to the defendant's neglect and that he had no reasonable ground for expecting notification of the hearing to assess damages by anyone, we cannot say as a matter of law that there has been an abuse of discretion in refusing to strike off the default judgment. Lancaster Nat. Bank v. Trust Co., 92 N.H. 337, 339; Restatement, Judgments, s. 129, comment a; Woodsville Fire District v. Cray, 88 N.H. 264.
Judgment on the verdict.
MARBLE, C. J., was absent: the others concurred.