Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The issue to be determined here is whether the district court was justified in denying appellant's motion for the entry of a default judgment.
On September 25, 1952 the bank instituted action in the district court to recover the balance due on respondent's note. Complaint was filed and summons issued on that day. The docket number assigned to the matter was 135650. On September 30 the sergeant-at-arms reported in writing to counsel that McGruder could not be found at the address furnished for purposes of service of process.
Thereafter, an unsuccessful search was made to discover his whereabouts and on January 13, 1953, upon the submission of the necessary affidavits showing that he was an absconding debtor and not available for service of summons, the court issued an order for a writ of attachment. The following day the writ was issued by the clerk.
It is conceded that these new papers did not bear a notation of the docket number of the pending in personam action; also that that action was not referred to in any correspondence at the time. The clerk then made up a new jacket for the attachment action and assigned it docket number 143573.
On January 20 the constable attached certain personal property and made his return to the court. Thereupon the clerk sent to counsel for the bank a notice saying that summons had been served on January 20, 1953, and that "if the defendant does not enter an appearance or file a written answer within 20 days from the date of service, a default will be entered." This notice was technically incorrect and counsel says some confusion resulted in his thinking as to whether the summons had been served personally in the in personam action. While the clerk's notice was incorrect technically, it did bear the docket number of the attachment action, as all documents are required to do in district court actions (R.R. 7:5-2). Counsel did not observe the number.
In any event on February 5, the complaint was filed in the attachment action; it contained the same claim for relief as the in personam suit. However, it was six days late. R.R. 4:77-2 (formerly Rule 3:72-2), which is applicable to district court practice (R.R. 7:12-7), requires the filing of the complaint in attachment actions "not later than 10 days after the * * * return is filed." On the same day, the court signed an order for publication of a notice of the attachment, and the clerk filed these papers without objection or note as to their tardiness.
On March 23, notice of attachment, affidavit of mailing of notice to respondent and affidavit of publication were filed. The clerk's docket shows that a "default" was entered on April 4 following the submission of affidavits of proof and non-military service (R.R. 7:9-1). Although the record does not show that this default was vacated, on or about April 6 the clerk notified counsel that as the complaint had been filed out of time, judgment would not be entered and that such motion should be made to the court as was deemed desirable.
A motion was then presented for an order directing the entry of the default judgment. The court denied the application solely because of the violation of Rule 3:72 (now R.R. 4:77-2). This appeal followed.
The contention advanced is that the trial judge used his discretion mistakenly in refusing to enter the default judgment.
When the application was made, undoubtedly the court had authority to direct the entry of the judgment despite the belated complaint. It could have been done by relaxing the rule (R.R. 7:1-2) or, if excusable neglect appeared, by enlargement of the ...