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Fox v. Fox

Decided: October 26, 1962.

EVELYN FOX, PLAINTIFF,
v.
MORRIS FOX, ET ALS., DEFENDANTS



Herbert, J.s.c.

Herbert

The complaint in this case is in three counts. The first count is for partition of real estate and not important to this discussion. By the second and third counts the plaintiff demands judgment against Morris Fox and Lillian Horowitz -- who are also defendants to the partition count -- for possession of certain furniture and household equipment or, in the alternative, for damages.

Morris Fox and Lillian Horowitz, although ordered to do so, failed to answer interrogatories relating to the subject matter of the second and third counts. Their delinquencies had not been cured when the case came up for trial and, on motion of the plaintiff's counsel, their answers to those counts were stricken and a default entered against each of them under the provisions of R.R. 4:27-2(b)(3). Ordinarily the plaintiff would have offered her proofs in open court immediately, for the trial was about to start, but she was ill and it is now proposed to take her deposition to supply the testimony she would give in the courtroom if she were well. Should counsel for Morris Fox and Lillian Horowitz, even though defaults have been entered against their clients on the second and third counts, be allowed to participate by cross-examination or otherwise in the taking of proofs with respect to the plaintiff's claims for furniture and household equipment which are the subject matter of those counts?

After a default has been entered against a defendant under R.R. 4:27-2(b)(3), the provisions of R.R. 4:56, relating to the entry of default judgments, become applicable. It was so held in Douglas v. Harris , 35 N.J. 270 (1961). Accordingly, if the plaintiff's second and third counts had been based upon promissory notes, she could now have final judgment

entered by applying to the clerk. R.R. 4:56-2(a). Her proofs would have to be in affidavit form only, and the defendants against whom defaults have been entered would have no opportunity at all to participate in the proceedings for entry of judgment.

The counts in question do not, however, present claims on which the clerk can act, and the plaintiff must apply to the court for her judgment under R.R. 4:56-2(b). Had Morris Fox and Lillian Horowitz ignored the service of process made upon them, surely there would be, after that type of default, no question of participation in the proceedings for entry of judgment; the plaintiff could follow conventional practice and present her proofs ex parte to the court. There is in the rule, however, the following sentence:

"If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application."

Does that sentence require notice to be given to Morris Fox and Lillian Horowitz, and if so, should it be inferred that the purpose of the notice is to enable defendants in their situation to exercise a right to participate in the taking of proofs? These defendants are entitled to receive the three-day notice. This is indicated by two cases dealing with the effect of R.R. 4:56-5, which was adopted in 1955 and deleted in 1961. In Douglas v. Harris, supra , the Supreme Court declared that rule had taken away from a defendant, defaulted for failure to make discovery, the benefit of the three-day notice provision contained in R.R. 4:56-2(b). Durling Farms v. Murphy , 39 N.J. Super. 387, 391 (App. Div. 1956), dealt with a default judgment which, shortly before R.R. 4:56-5 took effect, had been entered against a defendant because of his failure to appear at a pretrial conference, and the opinion contains this comment:

"Prior to September 7, 1955, R.R. 4:56-2(b) required three days' written notice to a defendant of an application to enter a default

judgment. However, effective September 7, 1955, after the instant action had been concluded, Rule 4:56 was supplemented by the adoption of R.R. 4:56-5 which excepts from the provisions of R.R. 4:56 those cases in which the court orders a party in default for failure to appear at a pretrial conference. The adoption of R.R. 4:56-5 is persuasive of the conclusion that prior thereto a court could not enter default in disregard of R.R. 4:56-2(b). Loranger v. Alban , 22 N.J. Super. 336 (App. Div. 1952)."

The Douglas and Durling Farms cases appear to have eliminated the possibility that, in entering judgment under R.R. 4:56-2(b), a defendant who has been declared in default by reason of his failure or neglect to make discovery can be treated like one who has never appeared at all, or like one who, having appeared, has subsequently withdrawn that appearance; and with R.R. 4:56-5 having been deleted in 1961, it follows from those cases that the three-day notice provision of R.R. 4:56-2(b) should again be observed in making application for entry of a final judgment against such a defaulted defendant. It does not follow, however, that, because he is entitled to such notice he is also entitled to participate in the taking of the plaintiff's proofs. The scope of the proof required when a final judgment by default is sought under R.R. 4:56-2(b) is discretionary with the court. Reilly v. Perehinys , 33 N.J. Super. 69 (App. Div. 1954); Douglas v. Harris, supra. It would be inconsistent with the court's discretionary control of the proofs to impose, in every case where the three-day notice provision of R.R. 4:56-2(a) applies, a requirement that the plaintiff and his witnesses submit to cross-examination by counsel for the defaulted ...


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