Lawrence-Allison & Associates West, Inc. v. Archer , 1989 Wyo. LEXIS 16 ( 1989 )

THOMAS, Justice,

specially concurring.

I have attempted to persuade myself that the issues in this case are of constitutional dimensions. I cannot agree that they are. I see simply errors of law on the part of the district court which prevented the entry of the judgment in favor of the appellee. We can correct this error by reversing without justifying a conclusion that the judgment is void.

As the majority opinion holds, the district judge did not understand the limited significance of the phrase “failed to plead or otherwise defend” found in Rule 55(a), W.R.C.P. This was not an instance in which the corporate defendant had failed to plead or otherwise defend, and there was no justification for invoking Rule 55, W.R. C.P. Certainly, any claim of the plaintiff to judgment by default would have required the notice set forth in Rule 55(b)(2), W.R.C.P., and, obviously, that procedure was not followed. Consequently, the default judgment must be set aside.

The conclusion that the trial court erred in entering a default judgment in this instance is consistent with the rationale in Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949), cert. denied 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949). The only necessity to invoke due process concepts in Bass related to the fact that the case was not appealed but, instead, the default judgment was the subject of a collateral attack. In this instance, there is an appeal from the erroneous judgment, and the error of law committed by the trial judge adequately disposes of any concern about the abuse of discretion.

Under prior cases from this court, the trial court might have been justified in going forward with trial because of the facts that it perceived, which were that the defendant had discharged its attorney on the eve of trial in order to secure a continuance. No trial was had, however. If one had been held, it would have been clear that the trial judge had abused his discretion because of the failure to take the trouble to become informed of the facts prior to a determination. Ex parte dialogue with the attorney whom the court believed to have been discharged does not count for that purpose.