Ramey v. Hewitt

188 A.2d 350, 15 A.L.R. 3d 582, 1963 D.C. App. LEXIS 199

• Court: District of Columbia Court of Appeals
• Decided: March 1, 1963
• Docket: 3109
• Status: Published

Opinions

QUINN, Associate Judge.

This is an appeal from a judgment by default. Appellant alleges error in the failure to notify him of the taking of ex parte proof.

Judgment by default was entered against appellant for failure to answer. On appellant’s motion, the court vacated the judgment on the ground that it was erroneously entered. At the same time the court denied his request to vacate the default and for leave to file a counterclaim. Ex parte proof was taken and the judgment from which this appeal is taken was entered. We must decide whether it was error to take ex parte proof without notifying appellant, in view of his appearance.

The present version of Rule 55(b) of the Court of General Sessions, which governs judgments by default, does not require the procedure appellant desires. This court, in Harco, Inc. v. Greenville Steel & Foundry Company, D.C.Mun.App., 112 A.2d 920, 922 (1955), after observing that the defaulting party there had not been notified of the taking of ex parte proof, said, “ * * * under the trial court’s present rule notice * * * is not required to be given to the party * * * even though he has appeared in the action.” We note, as we did in Harco, that such a result could not obtain under the Federal Rules of Civil Procedure, 28 U.S.C.A. Federal Rule 55(b) (2), the counterpart of the trial court’s Rule 55(b), provides:

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

This same provision, originally contained in the trial court’s rule, was later deleted by amendment.

Our Code Section 11 — 756(b) directs the trial court to conform its rules “as nearly as may he practicable” to the Federal Rules of Civil Procedure. When it is considered that a default does not concede the amount of damages but only that the complainant is entitled to recover some damages, the treatment accorded to defaulting parties under the two sets of rules is no less than striking. For the desire to contest the amount of recovery may be effectively defeated if one is not given notice of the hearing at which damages will be fixed.

Many courts have held the Federal Rule 55(b) (2) notice requirement is a constitutional one, fulfilling the demand of due process; oihers do not go so far.

* We think that the explicit notice requirement in the Federal Rules is desirable and calculated to insure fairer treatment to litigants. The trial court, mindful of its recently increased jurisdiction, might well reconsider the desirability of including such a requirement in its rules.

Affirmed.

See Annot., 51 A.L.R.2d 837.