286 A.2d 853 | D.C. | 1972
The issue presented by this appeal is whether the Clerk of the Superior Court of the District of Columbia acted properly in entering default against appellants for the failure of their counsel to appear at a settlement conference scheduled upon notice after both the complaint and the answer in this case had been filed.
At the outset we note that the state of the record on appeal enshrouds in uncertainty exactly what happened below.
D.C.Super.Civ.Rule 55(a) provides in pertinent part that “[w]hen a party against whom a judgment ... is sought has failed to plead or otherwise defend and that fact is made to appear . the clerk shall enter his default.” (Emphasis added.) However, appellants in this case had pleaded a defense and therefore we are unable to understand by what authority the clerk of the trial court purported to act. D.C.Super.Civ.Rule 55(b) (1) authorizes the clerk to enter a judgment by default, but only “if the defendant is in default for failure to appear as provided in Rule 12.”
The notice of the settlement conference contains the statement, “[f]ailure to appear will result in a default judgment or dismissal of the case,” but nowhere in Rule 16-1 is there any authority vested in the clerk to take such action. D.C.Super.Civ. Rule 77-11 enumerates the various orders which the clerk can grant but it does not authorize the clerk to enter default under the circumstances appearing in this case. We conclude upon the record before us that there was no authority for entry of default by the clerk against appellants and the trial court erred in refusing to vacate the default.
Reversed.
. For example, neither the complaint nor answer are in the record before us; the docket entries in the trial court contain no entry of a default which is at the heart of this appeal; and, the default order is denominated “Judgment” but is signed by one giving his title as “Clerk of Court.”
. The trial court no longer requires a settlement conference to be held in each case.
. The attorney did, however, file a statement for the settlement conference.
. Rule 12 deals with presenting defenses and objections.