Betts v. Murray ( 1956 )

Matthew M. Levy, J.

This, is a motion by defendant Murray to vacate a default judgment entered against him, and for other relief.

The accident occurred on January 1, 1950. Plaintiff, claims personal service of process.on the moving defendant on November 16,. 1950. There was no appearance or answer. Plaintiff did not- proceed thereon. An order for substituted, service, grounded upon affidavits sworn to December- 26, and. 28, 1951, was obtained on January é-, 1952; and filed with proof of service on January 10, 1952. There was no appearance or answer thereto, Plaintiff proceeded .some years later- by. way of default, and an. inquest, held: February 29, 1956, resulted in a judgment being entered on April 12,1956-for-$7;632;85 against the moving defendant. The defendant claims nonservice of process, either personally or substituted. He also asserts noncompliance with rule-190 of the Buies of Civil Practice which provides that where a default judgment is not taken, within one year after the default, “ at least'five days? notice-of the time and place- of the application [to the court] for judgment ” must be given to the defendant.

Plaintiff requests that, if the court open the default and grant defendant permission to appear and answer, defendant' be required to post a bond in the amount of'the-present judgment as security for- the protection, of plaintiff.. Plaintiff misunderstands the .nature of the relief, prayed for. by defendant. Defendant does not move to., open, his default as a matter of discretion. He seeks-to vacate? the:default judgment as a matter of right: Since the file? does, not disclose, and. plaintiff .'does not assert, that there was notice to. defendant as required by rulé 190, or that “ such notice ” was (as therein provided) “ dispensed with by order of the court or judge upon good cause shown”, the inquest and judgment must be vacated. .

In the circumstances, it is not incumbent upon me to resolve directly or by way of reference the disputed issue of. service of process. That is a matter which will have to be determined if and when plaintiff proceeds upon due notice to enter judgment by default or defendant seeks to vacate the alleged service of process or to open his default thereunder.

An order has been entered accordingly vacating the inquest and judgment herein.