Smith v. Gamma Construction Company, Inc.

Supreme Court of Alabama

Smith v. Gamma Construction Company, Inc.

387 So. 2d 188, 1980 Ala. LEXIS 3138

CourtSupreme Court of Alabama

DecidedAugust 22, 1980

Docket79-436

StatusPublished

Cited by4 cases

This text of 387 So. 2d 188 (Smith v. Gamma Construction Company, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Gamma Construction Company, Inc., 387 So. 2d 188, 1980 Ala. LEXIS 3138 (Ala. 1980).

Pincite

Opinion

EMBRY, Justice.

The dispositive issue in this case is whether the trial court erred by failing to set aside a default judgment entered against Paul C. Smith in behalf of Gamma Construction Company, Inc., a Corporation. [189]*189Resolution of that issue turns on whether or not submitting to deposition on oral examination under order of court constitutes an appearance entitling Smith to the three days’ notice prior to the hearing on the application for default judgment and entry thereof as required by Rule 55(b)(2), ARCP.

We hold that submission to deposition upon oral examination does not constitute an appearance within the meaning of Rule 55(b)(2), ARCP; therefore, Smith was not entitled to the three days’ notice under that rule before entry of default judgment against him.

The judgment below is due to be and is hereby affirmed under the authority of Frazier v. Malone, 387 So.2d 145 (Ala. 1980).

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

EMBRY, Justice.

The dispositive issue in this case is whether the trial court erred by failing to set aside a default judgment entered against Paul C. Smith in behalf of Gamma Construction Company, Inc., a Corporation. [189]*189Resolution of that issue turns on whether or not submitting to deposition on oral examination under order of court constitutes an appearance entitling Smith to the three days’ notice prior to the hearing on the application for default judgment and entry thereof as required by Rule 55(b)(2), ARCP.

We hold that submission to deposition upon oral examination does not constitute an appearance within the meaning of Rule 55(b)(2), ARCP; therefore, Smith was not entitled to the three days’ notice under that rule before entry of default judgment against him.

The judgment below is due to be and is hereby affirmed under the authority of Frazier v. Malone, 387 So.2d 145 (Ala. 1980).

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

387 So. 2d 188, 1980 Ala. LEXIS 3138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gamma-construction-company-inc-ala-1980.

Opinion

Related

Cite This Page — Counsel Stack