Askew v. Randolph Carney Co. , 1955 D.C. App. LEXIS 240 ( 1955 )

119 A.2d 116 (1955)

Remus H. ASKEW, Appellant,
v.
RANDOLPH CARNEY CO., Inc., et al., Appellees.

No. 1725.

Municipal Court of Appeals for the District of Columbia.

Argued December 5, 1955. Decided December 21, 1955.

John C. Ryan, Washington, D. C., with whom Lyle L. Robertson, Washington, D. C., was on the brief, for appellant.

No appearance for appellees.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

This appeal is from an order setting aside a default judgment and quashing an attachment. Named as defendants were a corporation and also three trustees, one of them an attorney. In an affidavit in support of the motion the defense attorney, acting for all the defendants including himself, stated that the complaints served upon defendants were misplaced by him in the process of changing secretaries and that the matter was completely overlooked until October 6, 1955, when notice of the default was received. (The judgment was entered September 26.) The affidavit also alleged a good and meritorious defense, and in their answers accompanying it, defendants stated they had paid plaintiff in full.

No authority need be cited for the proposition that motions under Municipal Court Rule 60(b) are addressed to the sound discretion of the court, and that decisions thereon should not be set aside unless it is shown that such discretion has been abused. This is particularly true regarding the vacating of a default judgment. It has been the consistent policy of the courts to favor a trial on the merits. As this court said in Manos v. Fickenscher, D.C.Mun.App., 62 A.2d 791, 792: "In passing on a motion to relieve from default a court must weigh competing considerations. On the one hand, it is important that cases be decided on their merits, and, on the other hand, it is important that litigation be concluded finally and with reasonable dispatch." It has many times been said any doubt should be resolved in favor of the motion, to the end of securing a trial on the merits, and that only where there has been a clear abuse of discretion will the ruling in such cases be reversed.

Defense counsel could probably have been more careful and alert to prevent a default judgment against his clients and himself. But the motion to vacate was filed ten days after notice of the default, and under all the circumstances the trial judge was not required to rule that the neglect was inexcusable.

We remind counsel, as we did in Manos v. Fickenscher, supra, that like other courts, we do not condone wilful or negligent disregard of court process, rules, or orders. We also offer the suggestion that considerations of professional courtesy might have prompted defense counsel to justify his position by filing a brief in this court, instead of foregoing that opportunity as he did. But, as has recently been said, courts are reluctant to attribute to parties the errors of their legal representatives. Barber v. Turberville, 94 U.S.App.D.C. 335, 218 F.2d 34.

Affirmed.