Coulas v. Smith

96 Ariz. 325, 395 P.2d 527 (1964)

 

RULE:

Ariz. R. Civ. P. Rule 55(a) authorizes the clerk to enter a default when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the Arizona Rules of Civil Procedure.

FACTS:

The creditor filed a complaint against the debtor and the cross-claimant on an open account and on a promissory note. The cross-claimant filed a complaint against the debtor on a note and for any judgment the creditor obtained against him. The debtor appeared and answered the complaint and the cross-claim but did not appear at trial. Judgment was for the creditor and for the cross-claimant against the debtor. Nearly two years later, the debtor filed a motion to set aside and vacate the judgment on the ground that he was not given three days’ notice of the application for judgment by default. The motion was denied. On appeal, the court affirmed.

ISSUE:

Is the judgment void since the debtor did not receive three days’ notice of the application for judgment by default?

ANSWER:

No.

CONCLUSION:

Defendant's assertion that the "default" judgment entered against him was void because he did not receive three days' notice of the application for judgment by default failed because the judgment below was not a default judgment. A default judgment obtains when a defendant fails to plead or otherwise defend. Here, the Defendant pleaded to the merits. He answered the complaint and filed a counterclaim. Because the judgment was merely voidable at most, Ariz. R. Civ. P. 60(c) prevented defendant from attacking the judgment more than six months after it was entered.

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