Fisher v. Taylor

E.D. Tennessee

Fisher v. Taylor

1 F.R.D. 448, 1940 U.S. Dist. LEXIS 1998

District Court, E.D. Tennessee·Decided October 4, 1940·Published·Cited by 4 cases

Opinion

DARR, District Judge.

Application is made for judgment by default. It appears in the record that proper service has been had and that the defendant has failed to make any defense within the time provided by law.

Under Rule 55, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, this default should be entered by the clerk as of course without any application to the court, provided an appropriate affidavit is filed.

However, the court has power to enter an order of default and Rule 55 is not a limitation thereof.

If an appropriate affidavit is filed as to the amount due from the defendant to the plaintiff, the matter may be referred to the clerk or presented again to the court.

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DARR, District Judge.

Application is made for judgment by default. It appears in the record that proper service has been had and that the defendant has failed to make any defense within the time provided by law.

Under Rule 55, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, this default should be entered by the clerk as of course without any application to the court, provided an appropriate affidavit is filed.

However, the court has power to enter an order of default and Rule 55 is not a limitation thereof.

If an appropriate affidavit is filed as to the amount due from the defendant to the plaintiff, the matter may be referred to the clerk or presented again to the court.

Fisher v. Taylor, 1 F.R.D. 448, 1940 U.S. Dist. LEXIS 1998 (E.D. Tenn. 1940).

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Opinion

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