Washington County v. Clark ( 1976 )

FOLEY, J.

We were in error when we stated in our former opinion that the trial judge had abused his discretion in denying defendant’s motion to set aside a default order. The facts are and the intended thrust of our opinion was (1) the county acted improperly when it moved for and obtained a default order without first advising the defendant in writing of its intention to move for such an order after it had made an agreement to do so with defendant’s former counsel; (2) the county acted improperly when at the time it sought and obtained the default order, it did not advise the trial judge of its agreement with the defendant; (3) that, therefore, the default order was obtained through misconduct on the part of the county; (4) that when the defendant was advised of the default order and moved to set it aside, he failed to comply with the requirement of law that a motion for relief from default be accompanied by an answer setting forth a meritorious defense; and (5) that as a result of the defendant’s failure to comply with the law, the trial judge had no power to grant the defendant the relief he sought.

It follows that it was incorrect to state that the trial judge abused his discretion by not doing what he was powerless to do. In all other respects our former opinion is adhered to.

Former opinion modified.