Efantis v. Decker Distributing Co.

District of Columbia Court of Appeals

Efantis v. Decker Distributing Co.

135 A.2d 655, 1957 D.C. App. LEXIS 311

CourtDistrict of Columbia Court of Appeals

DecidedNovember 5, 1957

DocketNo. 2074

StatusPublished

This text of 135 A.2d 655 (Efantis v. Decker Distributing Co.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Efantis v. Decker Distributing Co., 135 A.2d 655, 1957 D.C. App. LEXIS 311 (D.C. 1957).

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Opinion

ROVER, Chief Judge.

Appellees, as judgment creditors of one Thomas J. Flynn, filed suit against him and the appellant, predicated on the theory that merchandise sold to Flynn had been delivered to him for use in his restaurant; that he had sold the restaurant to the appellant; that under the “Bulk Sales Law,” Code 1951, § 28-1701 et seq., before the sale could be legally consummated, it was the duty of appellant to give appellees as merchandise creditors of Flynn proper notice of the proposed sale; that no such notice was given; and that accordingly the sale was “conclusively presumed fraudulent and void.” In their complaint ap-pellees requested several kinds of relief: to have the sale of the restaurant by Flynn to the appellant set aside and declared void, injunctive relief against both Flynn and the appellant, and money judgments against appellant alone.

Neither Flynn nor appellant answered the complaint within the time required by the rule, and a default was entered by the clerk with the notation, “To be set for ex parte proof v. both Defendants.” ¹ Before the assignment commissioner had set the date for the taking of ex parte proof, appellant’s attorney filed a motion to set aside [656]*656the entry of default, ■which was denied. This appeal is taken from the order denying the motion.²

Counsel for appellees contend that the order appealed from is not a “final order or judgment” and is therefore not appeal-able. We agree. No final order or judgment could have been entered until after the taking of ex parte proof pursuant to Rule 39, Section A(b). Before this could be accomplished, counsel for appellant filed his motion to set aside the “default”; failing to accomplish, this, he took this appeal.

We hold that the order appealed from is not a final order or judgment.³

Appeal dismissed.

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ROVER, Chief Judge.

Appellees, as judgment creditors of one Thomas J. Flynn, filed suit against him and the appellant, predicated on the theory that merchandise sold to Flynn had been delivered to him for use in his restaurant; that he had sold the restaurant to the appellant; that under the “Bulk Sales Law,” Code 1951, § 28-1701 et seq., before the sale could be legally consummated, it was the duty of appellant to give appellees as merchandise creditors of Flynn proper notice of the proposed sale; that no such notice was given; and that accordingly the sale was “conclusively presumed fraudulent and void.” In their complaint ap-pellees requested several kinds of relief: to have the sale of the restaurant by Flynn to the appellant set aside and declared void, injunctive relief against both Flynn and the appellant, and money judgments against appellant alone.

Neither Flynn nor appellant answered the complaint within the time required by the rule, and a default was entered by the clerk with the notation, “To be set for ex parte proof v. both Defendants.” ¹ Before the assignment commissioner had set the date for the taking of ex parte proof, appellant’s attorney filed a motion to set aside [656]*656the entry of default, ■which was denied. This appeal is taken from the order denying the motion.²

Counsel for appellees contend that the order appealed from is not a “final order or judgment” and is therefore not appeal-able. We agree. No final order or judgment could have been entered until after the taking of ex parte proof pursuant to Rule 39, Section A(b). Before this could be accomplished, counsel for appellant filed his motion to set aside the “default”; failing to accomplish, this, he took this appeal.

We hold that the order appealed from is not a final order or judgment.³

Appeal dismissed.

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135 A.2d 655, 1957 D.C. App. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/efantis-v-decker-distributing-co-dc-1957.

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