Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[33 NJSuper Page 71] Defendants appeal from a refusal to set aside a judgment for $5,350 taken against them by default in a death action. They claim: first, that this judgment
was entered without any proof as to the matter of liability; second, that notice was not given them as required by R.R. 4:56-2(c); and third, that under the circumstances herein related and by force of R.R. 4:62-2(a), relief should have been granted from the judgment.
R.R. 4:56-2(b) does not dispose of the first question -- namely, whether proofs should be taken on the issue of liability. The rule -- it deals with a default for failure to plead in the case of an unliquidated claim (and that is the situation here) -- goes no further than to authorize hearings "if * * * it is necessary" to establish the truth of any averment by evidence. Cf. Klapprott v. United States , 335 U.S. 601, 611, 624, 69 S. Ct. 384, 93 L. Ed. 266 (1949); United States v. Borchers , 163 F.2d 347 (C.C.A. 2 1947). Nor, if you read it literally, is R.R. 4:8-4 determinative of the point. The provision there, that averments in a complaint are admitted when not denied in "the answer," has to do only with the effect of a nondenial where there is an answer. But cf. Spencer v. Fairclough , 137 N.J.L. 379, 382 (E. & A. 1948) and former Supreme Court Rule 34 (1938); Martin v. Morales , 102 N.J. Eq. 535, 539 (E. & A. 1928) and former Chancery Rule 50 (1938).
The matter has been left to practice. At law, unfortunately, the practice over the years has not been uniform. My colleagues, Judges Jayne and Francis, each, when hearing legal actions, made it a practice, if there appeared to him to be any question as to liability, to take some proof of the matter, and then -- upon satisfying himself thereon -- to submit to the jury only the question of damages. See, too, 2 A Waltzinger, N.J. Practice 42 (1954). Other judges, however, have entertained no proof concerning liability. See 1 Bradner, N.J. Law Practice § 243 (1940); White v. Hunt , 6 N.J.L. 330, 331 (Sup. Ct. 1796); cf. Creamer v. Dikeman , 39 N.J.L. 195 (Sup. Ct. 1877) and Broad and Market National Bank v. Weisen , 99 N.J.L. 331, 332 (Sup. Ct. 1924), dealing with negotiable instruments.
In equity the practice generally, subject to exceptions, has been to call for evidence to support the allegations of the bill or complaint. Perrine v. Hafeman , 100 N.J. Eq. 33 (Ch. 1926); Smith v. Howell , 11 N.J. Eq. 349, 352 (Ch. 1857); Dickinson's Chancery Precedents (Rev. Ed. 1894). 35, 170; but cf. Martin v. Morales , 102 N.J. Eq. 535, 539 (E. & A. 1928), supra; N.J.S.A. 2:29-45, repealed; Chancery Rule 199 (1938).
It might be well to observe that we are not dealing with liquidated claims, nor with the matter of damages. Nor with a defendant, who files an answer, but fails to appear at the trial. 49 C.J.S., Judgments , § 198, p. 343; Rules, English Supreme Court of Judicature, Order 36, Rule 31; cf. N.J.S.A. 2:29-49, repealed. Nor with the County district court practice. R.R. 7:9-2; 17 N.J. Practice (Fulop, District and Municipal Courts) 452; cf. N.J.S.A. 2:32-118, repealed. See, too, Torrence v. Van Emburg , 2 N.J.L. 98 (Sup. Ct. 1806) and Cooper v. Mullin , 2 N.J.L. 98 (Sup. Ct. 1806), dealing with the small cause court.
It is true that under the general rule obtaining in most jurisdictions upon a default in pleading, whether in equity or at law, proof of the allegations of the complaint will not be entertained. Young v. Thomas (1892) 2 Ch. 134, 137 (C.A.); Green v. Hearne , 3 T.R. 301, 100 Eng. Rep. 587 (K.B. 1789); 1 Tidd's Practice (4 th Am. ed. 1856), *580, 581; Thomson v. Wooster , 114 U.S. 104, 110, 5 S. Ct. 788, 29 L. Ed. 105 (Bradley, J. 1885); Sheehy v. Mandeville , 7 Cranch , 208, 11 U.S. 208, 218, 3 L. Ed. 317 (Marshall, C.J. 1812); 49 C.J.S., Judgments , § 212, p. 374; 31 Am. Jur. 517.
But we think the New Jersey practice better -- the practice leaving to the discretion of the trial court, in equity or at law, whether or not to take proofs as to the plaintiff's right to relief. Martin v. Morales , 102 N.J. Eq. 535, 539 (E. & A. 1928), supra; Streeton v. Roehm , 83 Ohio App. 148, 81 N.E. 2 d 133 (Ct. App. 1948). This comports with the
principle entrusting generally to the trial court's discretion the whole matter, whether or not to enter a judgment by default. 6 Moore's Federal Practice (2 nd ed.), § 55.05 .
Perhaps too little consideration has been had in legal actions as to the reasons why the law has deposited with the court this discretion as to whether or not to take such proofs. Indeed we may say further -- without by any means determining in what situations, if any, the lack of proofs will lead to an avoidance of a default judgment -- that there are circumstances which have an especial call upon the court in the exercise of that discretion, as, where the defendant is an incompetent or an infant (proofs then are always taken in England, 1953 Annual Practice, p. 445); or where the defendant has been served by publication (49 C.J.S., Judgments , § 212, p. 374); or where the complaint ...