*1 MADDEN, BURNS, R. L. M. L. Jr. SHAMROCK CLUB
d/b/a S.W. 2d 55 Supreme Court of Arkansas Opinion delivered December Batchelor, Batchelor, Batchelor & Jr., F. by: Fines & Whitlock, Everett, Everett by: appellee. C. John This the trial results from Holt, Frank Justice. *2 denying appellant’s court’s quash motion to and a vacate default
On November the appellee filed an action against appellant asserting he had suffered property damages to his building as a operation result of the negligent anof automobile appellant and a separate had negligently entrusted the automobile to On 13, 1978, November a summons was served on him. On January 8, 1979, a default judgment $5,000, costs, plus against rendered him. summons, On January a issued 4 days earlier, was served separate defendant, on the owner of the January automobile. On a motion to quash service was filed on behalf of the appellant both and separate defendant. time, On March during term appellant amended pleading, this seeking set aside the to judgment. The court treated the supplemental pleading aas and, motion to vacate after a hearing, overruled the motion. We need only to appellant’s discuss contention court erred setting default for “ex cusable and other 1962).* Ark. Stat. Ann. It (Repl. is within sound § 29-401 discretion of the deny court to or a motion to set judgment, and the on whether there has been an abuse of that discretion. Johnson Jett, (1952); 29-401, S.W. 2d and § supra. judgments Default are not favorites of the law and possible. Lewis, avoided when Winters v. 260 Ark. Perry 542 S.W. Bale Chevrolet granting “The a of is a may harsh drastic action and a deprive party Lewis, of rights.” supra. substantial Winters v. attorney, who suit filed an had Appellee’s appellant on an unrelated matter represented previously appellant dur- attorney given power which he had been There was some time from to period ing 1978, 7 spring him in the represented he had also evidence action, prior months of this on DWI charge. Procedure, replaced by * This is now Ark. Rules of Civil Rules statute 1979). on When the summons November appellant received him attorney, informed telephoned who he former matter, in the could not appellee that he was him, get at- appellant to suit with and advised discuss the torney appellant him. When said to duty to coverage, attorney explained carrier’s surance the carrier. Ac- contact defend him advised to him hire not advise appellant, cording name him he wanted the lawyer told However, it. he wanted to collect from company because conversation he knew the end appellant admitted *3 appellee and was the would attorney that the appellant undisputed him. It is called back not carrier with day and left the name of his insurance that same secretary. day the wrote the attorney’s the That carrier, a complaint. a of the sending copy About surance later, days process, after or within service of week by and letter that there was no telephone him carrier advised pass coverage the vehicle. not insurance on Appellant testified that to the this information on telephone name and gave called and when he back attorney’s secretary, company of number receiving it.” the end of After appellant “thought his then consulted judgment, appellant notice the default quash attorney, filed the motion to ser- promptly who present indicated, vice, to vacate and later amended as a just When it is there exists a for demonstrated cause answer, timely judgment a default filing defendant set aside. Barkis v. discretion, the exercise of guide As a proper 269 basic its underlying policy is have each case determined on because, in the course of substantial litigation, merits normal parties and is best rights preserved justice are between relationship In of the former be- policy. view served appellant’s appellee’s tween judgment, we are questioning promptness unfortunate misunder- the view that there was honest and timely just which constituted cause standing Therefore, aside and the default is set answer. vacated. and remanded.
Reversed J., C.J., Hickman,
Fogleman, dissent. A, dissenting. Reversal Justice, Chief Fogleman, John the motion to set denying the circuit court the action of a reversion to in this case is the default legislative prior to situation that existed rather chaotic judg- century ago. A default quarter of a undertaken reform Ark. Stat. aside under Ann. § ment should not be set 1962) unavoidable except excusable the com- cause. This statute which is or other amended Act as bination of Acts accepted previous holdings that seriously impaired to file a of a defendant given excuse for failure almost Amsler, Pyle v. timely pleading. See In Metzler,
441; Walden 439- Walden, clearly foreclosing stated that we were not prevented of relief to a who has been possibility In the defense. ab- making from neglect casualty, excusable of unavoidable sence the default. cause, to set aside the court had no discretion Robertson,242 Ark. In Moore v. *4 judg-
where, here, as moved to set term, the same we said: during ment rendered in markedly were liberal At one time our statutes the of time for trial extensions permitting courts default aside pleadings defensive and to set filing of liberality greatly the That within term. judgments of Acts curtailed the enactment 351 49 Metzler, Ark. in v. Walden 227 Those acts were construed Amsler, Ark. Pyle 782, (1957), and v. 227 S.W. 2d 301 439 785, (1957). 2d 441 We held that S.W. 1955 301 requiring in mandatory were statutes trial allowing in by law and within the time fixed plead only default ensuing court to set aside casaulty. showing of unavoidable upon Pyle cases the Walden Some two months before 1957, Act adopted 53 legislature decided the were 576 acts to the ex- relaxed strictness
which 1955 impair Act in this shall “nothing declaring tent of judg- any default to set aside Court the discretion of unavoidable neglect, showing of excusable upon ment Ark. Stat. Ann. § just casualty or other un- no issue of 1962). at hand is In the case casualty. is avoidable either excusable finding its discretion for court abused vacating just cause for neglect or other 365, Barnett, S.W. v. Ark. in 516 What we said 257 Robertson here, viz: 592, appropriate equally 2d prior of this court quote from decisions Appellants of other courts 1955, 49, and from decisions No. to Acts in delay effect that to the construing similar statutes "ex through came about responding complaint or other unavoidable neglect, cusable Acts procedure law before history cause.” The change 49, purpose and the effect No. can found by Acts No. brought about 49 (1957) Metzler, S.W. 2d Ark. v. Walden 227 301 439 441 Amsler, Pyle v. Ark. Judge, 227 Amendment, Acts (1957). The effect of Act nothing “. . . provided: which No. of the Court to set impair shall discretion showing of excusable judgment upon cause,” has con been Tolbert, Ark. Interstate Fire Insurance Co. sidered in Robertson, MooreAdm’x v. Ryder Truck (1967); and S.W. 2d v. Wren Oil Dist. Rental *** Dist., 264 Buren School Corp. in Allied Chemical
Further Van added: we *5 cases, discussed, what does or does in several have [W]e un neglect, showing of “excusable not constitute Perry v. Bale avoidable (1978); 552, 2d Co., Ark. S.W. Robert Chev. 150 566 263 (1975); 2d Barnett, S.W. Ark. son v. 516 257 592 577 Co., Ark. v. Oil Dist. Ryder Truck Rental Wren 253 (1973); Cone- 2d Elect. Co. v. Ark. S.W. 236 489 Huddleston, 2d Barkis S.W. Ark. 458 728 249 (1964); and 2d Ark. S.W. v. 238 384 269 Tolbert, v. Ark. Fire Co. Interstate Insurance 343 233 said that the 2d Also we have often S.W. us, a trial court’s deci reviewing when question before default, is deny to or a motion to set aside sion Moore, Ad whether the court abused its discretion. 2d Robertson, v. S.W. ministratrix Ark. Cone-Huddleston, (1967), supra. and Ark. Elect.Co. term during filed fact that the motion was
The which the was rendered does during judgment of court the trial court either the or enlarge not discretion Rental, Ryder Truck Inc. review court. In appellate 827, 489 S.W. Distributing v. H. B. Oil Ark. Wren 2d we said: Ark. Ann. default in under Stat. §
The 27- case, 1962) questioned in this question to set aside the there is no motion term of court in during was filed the same judgment rendered, judgment simp- which the so the trial court abused its dis- ly down to whether boils judgment cretion in the default refusing set aside or because of excusable cause. other authority under setting aside of which addresses itself Ark. Stat. Ann. is an action § — trial the discretion of this the discretion of the court Cone-Huddleston,Inc., Electric Co. v.
court. Arkansas Central, Inc. v. International 2d In 728. Renault 10, we said: Imports, 266 Ark. in determining
A trial wide discretion judge has vacated and this a default un- judge of the the decision will not reverse court Fawcett, 264 discretion. less has abused Jetton McBride, and Davis v. (1978) *** 448 S.W. *6 law, Even before became court had this follow § 29-401 ed the rule the denial that of a motion to set the term at judgment during of court which was rendered be disturbed on of an absence abuse v. Jett, the trial court’s discretion. Johnson I do say not see how this court can that trial court its It to me appears abused discretion. that this court is exer- discretion, or, least, cising its own at saying just how the trial court should have exercised This its discretion. leaves the trial court little latitude.
Burns that power testified under which Davis had year served been for a he dissolved that being understood this when he called Davis after served with Davis, If he known summons. had not he would have employed when he received the He summons. definitely said that he certainly aware that was Davis Madden, representing him representing but was did not know when he first called that Davis. He said after he very telephone had his with Davis he came first conversation that Madden. conclusion Davis was Davis testified that he positively told Burns that Burns him, needed to find an and that he (Davis) told specifically Burns that he represented Madden that, that he made sure that ethically, Burns understood he could not discuss the matter with David Burns. also said he that told that if Burns Burns had insurance must con- tact insurance carrier.
Although major there is no in the pertinent conflict testimony, obviously the trial court believed Davis. It quite clear Burns that he employ understood needed to lawyer. get Whether Davis with wanted to touch Burns’ totally point. surance carrier is if beside Davis Even said he wanted to collect from there was company, no reason for Burns to furnishing believe name of the matter. telling carrier concluded Davis denied purported he should furnish the name the insurance carrier. Burns Davis that the vehicle insurance carrier advised involved that Burns to believe reason not insured. Is *7 I a carrier? the name of when he furnished not know this that there is. doubt that Barkis agree
I do in fac- action majority’s support lends attorney There, the defendant’s this case. background tual the clerk’s interrogatories to an answer and answers to took he had filed both thought day on the last filing office for answers to the with whom the The clerk pleadings. deputy was handed answer were filed stated no terrogatories to the fact that the answer attorney. him the When alerted filed, copies discovered had not been apparent- We said original. file not the answer when, as to explanation There was no ly it had been lost. attorney’s af- where, it In the whom had been lost. how or and received fidavit, delivered to he said that the answer filed, later, when days two by a clerk. The answer was deputy that the advised defendant’s plaintiffs taken an answer. No action was record not show for months. plaintiff to strike answer six interrogatories certainly
answers to was consistent with default, an intention not can be called or not. defensive
I affirm the would joins Hickman am state that Mr. I authorized to Justice opinion.