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Durling Farms v. Murphy

Decided: March 9, 1956.

DURLING FARMS, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
GEORGE MURPHY AND JAMES MURPHY, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

[39 NJSuper Page 388] The complaint alleged the defendants' indebtedness in the sum of $2,391.95 and interest on a book account for goods sold and delivered. The defendants denied

the allegations of the complaint, asserting as a separate defense that the plaintiff and the defendants had entered into an accord and satisfaction.

Default judgment for the sum demanded was entered, which stated that "neither the defendants nor their attorneys appeared for the pretrial conference although due notice was given and * * * that interrogatories served on the defendants' attorney were not answered." More than a month later, the defendants' attorney received written notice from the Clerk of the Superior Court that default judgment had been entered. Thereupon, the defendants gave notice of motion to vacate the default judgment, supported by an affidavit of Mr. Bressler, their attorney, that he "never received notice of said pretrial conference" and that the defendants "were not represented at said pretrial conference due solely to the fact that I did not receive notification of same." He further stated that the defendants have a good and meritorious defense to the plaintiff's complaint. The defendants' motion to vacate the default judgment was denied, and the defendants appeal.

Two questions are here raised: first, whether on the record before us receipt by the defendants' attorney of notice of the pretrial conference was sufficiently proved to warrant the application of sanctions, and, secondly, whether the trial court had the power under the provisions of R.R. 4:29-1(c) to enter a default judgment upon failure of the defendants or their attorney to attend the pretrial conference.

The judgment recites "that neither the defendants nor their attorneys appeared for the pretrial although due notice was given." The record submitted for our consideration on this appeal contains no proof that any notice of the pretrial conference was given to the defendants or their attorney, R.R. 4:29-2. On the defendants' motion to vacate the default judgment, Mr. Bressler, by affidavit, stated:

"3. I never received notice of said pretrial conference nor did I receive any communication from Hauck and Herrigel, Esqs., nor any other party concerning this matter between May 4, 1955 and June 16, 1955.

4. My clients were not represented at said pretrial conference due solely to the fact that I did not receive notification of same.

5. In my opinion my clients have a good and meritorious cause of action to the within complaint."

In reply, Mr. Sutton, the plaintiff's attorney, submitted his affidavit in which the only reference to notice is as follows:

"5. I subsequently received notice that the case had been set down for pretrial on May 4, 1955. Neither the defendants nor their attorney, Mr. Bressler appeared at the pretrial. Because there was no appearance on behalf of the defendants at the pretrial, judgment was rendered against the defendants jointly and severally for the sum of $2,391.95 with interest at the rate of 6% per annum, from the 19th day of July, 1950 together with costs to be taxed, the relief demanded in the complaint. It was ascertained at the time of the pretrial that notice of the pretrial had been sent to Mr. Bressler."

There is not a scintilla of proof, by affidavit or otherwise, as to how notice of the pretrial conference had been sent to Mr. Bressler. R.R. 4:29-2 places upon the county clerk the responsibility of giving notice to all attorneys of an impending pretrial conference. In light of the fact that the defendants' affidavits categorically disclaim receipt of notice, it is difficult to understand why the appendix contains no proof of when or ...


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