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Broder Credit & Collection Svc. v. Burton

Decided: February 21, 1984.

BRODER CREDIT & COLLECTION SVC., PLAINTIFF-RESPONDENT,
v.
DOUG BURTON, INDIVIDUALLY AND T/A BURTON CERAMIC TILE, DEFENDANT-APPELLANT



On appeal from Middlesex County District Court.

Botter, Pressler and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

This case involves a small claim, an inconsiderate attorney and a court's efforts to manage its calendar. The appeal concerns defendant's attempt to vacate a default judgment.

Plaintiff filed a two-count complaint in the district court seeking to recover $273 on a book account and for services rendered.*fn1 No matter how small the amount in controversy, it is the function of this court to see that justice is done. See Hoddeson v. Koos Bros., 47 N.J. Super. 224, 228 (App.Div.1957).

Pursuant to the Early Settlement Program of the county district court, a notice was sent to the attorneys listing the matter for a settlement conference on July 7, 1981 at 9:00 a.m. The notice contained the following paragraph:

NOTE: THIS IS A REQUIRED COURT APPEARANCE. If this letter is directed to a party who has no attorney and is representing himself, he must be present in court on the date and at the time assigned. If this letter is directed to an attorney, he and his client must be present in court as directed.

The final paragraph stated in part:

It was signed by the presiding judge of the district court.

Plaintiff's counsel attended the settlement conference as directed. Neither defendant nor his attorney appeared at 9:00 a.m., but at 10:30 a.m. defendant's attorney called the court to advise that he was not coming because his client felt very strongly about the case and would not pay anything, and that settlement was impossible.*fn2

By letter dated July 17, 1981 plaintiff's attorney advised defendant that judgment had been entered against him for $273 plus costs of $26.35 for a total of $299.35, and threatened execution if not paid.

Defendant's attorney filed a notice of motion on July 24, 1981 seeking to set aside the judgment under R. 4:50-1, supported by his own affidavit in which he denied knowledge as to why the judgment had been entered. The notice of motion was on a printed form and contained the following paragraph:

Pursuant to R. 1:6-2 the undersigned requests that this matter be submitted to the court for a ruling on the papers. A proposed form of order is annexed.

The court heard the motion on August 28, 1981. On that day plaintiff's attorney appeared but neither defendant nor his attorney appeared. Defendant's attorney claimed that he considered that oral argument had been waived and that the ...


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