{
  "id": 1709262,
  "name": "Frank MEISCH v. V. J. BRADY",
  "name_abbreviation": "Meisch v. Brady",
  "decision_date": "1980-10-08",
  "docket_number": "CA 80-202",
  "first_page": "652",
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      "cite": "270 Ark. 652"
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      "cite": "170 S.W. 222",
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      "reporter": "Ark.",
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    {
      "cite": "20 S.W. 2d 317",
      "category": "reporters:state_regional",
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      "year": 1929,
      "opinion_index": 0
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    {
      "cite": "180 Ark. 46",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1393627
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    {
      "cite": "203 Ark. 861",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1447044
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      "year": 1942,
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  "last_updated": "2023-07-14T16:40:39.197564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Frank MEISCH v. V. J. BRADY"
    ],
    "opinions": [
      {
        "text": "George Howard, Jr., Judge.\nThis is an appeal from an order of the Faulkner Circuit Court setting aside a default judgment entered in behalf of appellant and against the appellee for $2,900.00.\nThe pertinent facts are: on February 21, 1979, appellant, plaintiff below, filed his complaint and summons was duly issued and personally served on the appellee-defendant on March 2, 1979.\nA default judgment was entered on May 31, 1979, since no pleading was filed in behalf of appellee. On July 26, 1979, after appellee learned of the default judgment, appellee filed his petition to vacate the judgment alleging:\n\u201c2. That this Judgment should be set aside because of an unavoidable casualty and misfortune preventing him from appearing or defending the lawsuit.\n\u201c3. That this Defendant has an undoubted defense to said indebtedness and further has a counterclaim against this Plaintiff for a substantial amount of money in excess of that money allegedly claimed due by the Plaintiff, and further, he did not, in fact, owe this Plaintiff.\u201d\nAppellant\u2019s response to appellee\u2019s petition asserted:\n\u201c1. Defendant failed to allege sufficient facts or appropriate grounds for setting aside prior judgment. . . .\n\u201c2. Defendant alleges no facts, only conclusions of law and as such said petition should be denied and stricken from the record. ...\u201d\nOn March 17, 1980, the trial judge entered his order \u25a0vacating the judgment stating:\n\u201c1. That good cause has been shown by the defendant to set aside the default judgment. ...\u201d\nRule 55 of Arkansas\u2019 Rules of Civil Procedure provides:\n\u201c(a) When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend . . . judgment by default shall be entered by the court. \u25a0\n\u201c(c) The court may set aside a default judgment previously entered upon a showing of excusable neglect, unavoidable casualty, or other just cause.\u201d (Emphasis added)\nRule 60 of the Rules of Civil Procedure provides:\n\u201c(b) Any judgment of any circuit, chancery or probate court shall have the same force and effect as a conclusive adjudication upon the expiration of ninety (90) days from the filing thereof with the clerk of the court. . . . Any such judgment may be modified, set aside or vacated within ninety (90) days from the filing thereof with the clerk of the court or pursuant to a motion made within that ninety (90) day period. .\n\u201c(d) No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense. (Emphasis added)\nThe appellee-defendant offered the following testimony in support of his petition:\nQ. Back in February of 79 did you get served with a summons, V. J. ?\nA. Yes, I did.\nQ. And you don\u2019t deny that the time is past and no answer was filed for you?\nA. I believe that\u2019s correct.\nQ. Tell us what happened.\nA. Well, within a week after I received the notice, uh, my uncle was representing me.\nQ. Who was that?\nA. Russell Roberts. And it was shortly after his retirement, as to what month I don\u2019t know. And when \u2014 I took it out to his house one Sunday afternoon and gave it to him. And he told me that, uh, he didn\u2019t have the office \u2014 the office wasn\u2019t open \u2014 or he didn\u2019t go down to the office, and he would go down some night and file an answer. And that was \u2014 as far as I know, that was, uh, what happened to that.\nQ. Subsequently found out, of course, that he was sick.\nA. Well, later on, uh, I got a notice where a judgment had been issued against me.\nQ. And that\u2019s when you brought it to me, or shortly after that?\nA. Right.\nQ. And your uncle, Mr. Roberts, was ill?\nA. Yes.\nQ. Did you find that out.\nA. Yes.\nMR. JONES: I\u2019m going to object to anything \u2014 the condition anyone was in at that time, your Honor. I don\u2019t think anybody here is an M. D. If they\u2019ve got testimony, an M. D. or someone to testify to that fact, that\u2019s fine with me.\nQ. Do you owe the man the money?\nA. No, sir. Maybe a part of it but not that much.\nQ. Does he owe you any mony?\nA. He does, yes, sir.\nQ. How much does he owe you?\nA. Approximately some $3,000.\nQ. So you have set off to the debt?\nA. I have all the bills. I haven\u2019t run them up. I don\u2019t know exactly the amount.\u201d\nA judgment by default is just as binding and forceful as a judgment entered after a trial on the merits in a case; and it is not to be discredited or regarded lightly because of the manner in which it was acquired. A default judgment determines a plaintiff s right to recover and a defendant\u2019s liability just as any conventional judgment or decree. See: 49 C. J. S., Judgments, \u00a7 200, page 356. It has been stated authoritatively that an additional purpose of the entry of a default judgment is to keep the dockets current and expedite disposal of litigation, thereby preventing dilatory tactics on the part of a defendant from impeding the plaintiff in the establishment of his claim; and that it is not designed to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment obtained without the rigors encountered in a contest. See: 47 Am. Jur. 2d, Judgments, \u00a7 1152, page 184.\nRule 55 states in no uncertain terms that a default judgment may be set aside \u201cupon a showing of excusable neglect, unavoidable casualty, or other just cause.\u201d And rule 60(d) is equally clear and in definite terms provides that \u201c\\n\\o judgment against defendant, unless it was rendered before the action stood for trial, shall be set aside . . . unless defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense.\u201d\nFrom the plain meaning of the provisions referred to in Rules 55 and 60, appellee-defendant\u2019s efforts fall far short of establishing the necessary requirements entitling him to an order vacating appellant\u2019s judgment. We hold that the trial court abused its discretion in setting aside the default judgment.\nIt is beyond debate that illness of a party\u2019s counsel, so severe as to prevent him from appearing in behalf of^his client, is an appropriate ground for vacating a default judgment provided the party litigant did not know of it in time to retain other counsel or was prevented in some way from doing so; otherwise, such illness of counsel is not grounds for setting aside the judgment. See: C. J. S., Judgments, \u00a7 334, page 624;Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78 (1942).\nThis record, to say the very least, does not demonstrate in any way that appellee\u2019s attorney\u2019s purported illness was so severe as to prevent him from filing an answer within the allotted time provided under law. The record tends to support a conclusion that the appellee\u2019s predicament could have been avoided by the exercise of care or diligence. Appellee testified that he delivered the summons within a week, after he had been served by the officer, to his attorney, his uncle; that his uncle advised him, when appellee took the summons to his uncle\u2019s house one Sunday afternoon, that \u201che didn\u2019t have the \u2014 the office wasn\u2019t open \u2014 or he didn\u2019t go down to the office, and he would go down some night and file an answer.\u201d Appellee stated that he consulted his present counsel when he learned of the judgment \u2014 146 days after appellee was served with the summons and 56 days after the judgment was entered. It is plain that the circumstances surrounding appellee\u2019s retention of his uncle to represent him and the status of his uncle as a practicing attorney \u2014 his retirement and the existence versus nonexistence of an office \u2014 dictated a greater interest in his case than was manifested by appellee as illustrated by this record. Indifference, inattention and inexcusable negligence are not the same as excusable neglect. These terms are incomparable.\nIn Alger v. Beasley, 180 Ark. 46, 20 S.W. 2d 317 (1929), the Supreme Court stated that the failure of an attorney to file an answer is imputable to the litigant.\nFinally, appellee\u2019s petition to vacate the judgment simply alleged conclusions of law regarding the purported unavoidable casualty which prevented him from appearing and defending in this lawsuit. The petition is also deficient from the standpoint of appellee\u2019s failure to assert a valid defense. Appellee simply stated that he had \u201can undoubted defense to said indebtedness and further has a counterclaim against the plaintiff for a substantial amount of money in excess of that money allegedly claimed due by the plaintiff and further, he did not, in fact, owe this plaintiff.\u201d Appellee testified, when asked if he owed the appellant any money, \u201c[n]o, sir. Maybe a part of it but not that much.\u201d And when asked if appellant was indebted to him, appellee explained \u201cI don\u2019t know exactly the amount.\u201d\nIn Trumbull v. Harris, 114 Ark. 493, 170 S.W. 222 (1914), the Arkansas Supreme Court emphasized that it is the duty of a litigant to keep himself informed of the progress of his case and if a default judgment is entered against him and he relies upon unavoidable casualty as a ground for relief, he has the duty to show that he himself is not guilty of negligence.\nIn Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204 (1961), the Arkansas Supreme Court said that in an action to vacate a default judgment, the petitioner has no grounds to complain of the dismissal of his petition where he has not shown a meritorious defense to the action in which the default judgment was entered.\nReversed and remanded with directions to the trial court to reinstate appellant\u2019s default judgment.\nRule 60(c) provides:\n\"(c) The court in which a judgment has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:\n\"(7) For unavoidable casualty or misfortune preventing the party from appearing or defending.\u201d",
        "type": "majority",
        "author": "George Howard, Jr., Judge."
      }
    ],
    "attorneys": [
      "Guy Jones, Jr., for appellant",
      "Brazil & Roberts, for appellee"
    ],
    "corrections": "",
    "head_matter": "Frank MEISCH v. V. J. BRADY\nCA 80-202\n606 S.W. 2d 112\nCourt of Appeals of Arkansas\nOpinion delivered October 8, 1980\nGuy Jones, Jr., for appellant\nBrazil & Roberts, for appellee"
  },
  "file_name": "0652-01",
  "first_page_order": 680,
  "last_page_order": 688
}