Norman v. Allen

McMurray, Judge,

concurring specially.

This case involves the setting aside of a judgment on motion to set same aside which was filed more than 30 days after a final judgment was rendered in favor of the defendant on her counterclaim. The case was called in open court "to be heard on the regularly published non-jury calendar.” (Emphasis supplied.) Whereupon the defendant announced ready, and the plaintiff "failed to answer” and was declared in default. Whereupon a jury was apparently impaneled and a verdict was returned for the defendant in "the amount of $880.00 in attorney fees and $820.00 punitive damages. A total of $1,700.00.” Judgment for $1,700 was then rendered in favor of the defendant.

Thereafter, the motion to open default was filed more than 30 days after entry of final judgment.

The motion does not raise an attack upon lack of notice of the case being on the calendar and ready for trial. Nor does it raise an attack upon a jury trial heard on a "regularly published non-jury calendar” or that the case was not on a jury calendar wherein the judgment was rendered by a jury. Thus, even though it is quite apparent that a motion for new trial was not filed within 30 days, nor was an extraordinary motion for new trial brought within three years, it cannot be said that this could be called in substance an extraordinary motion for new trial because of lack of notice as to a jury trial of the issues when in fact the case was only on a non-jury calendar "regularly published.”

Therefore, since plaintiff in the trial court does not raise the issue of lack of notice of the calendar, I concur in the judgment only but not necessarily in all that is said in the opinion. I do, however, agree with the language of the majority that, "[n]owhere is it alleged that the defendant did not request the trial date or that the plaintiff was not given the required notice of the trial date,” and there is a void as to the requisites necessary to sustain an attack based on the lack of personal jurisdiction. However, I still cannot see how the case would be called on a regularly published nonjury calendar and then be immediately tried by jury on the same date. Certainly it appears on the face of the record that no notice of a jury hearing on the counterclaim was given to the plaintiff even if her petition be dismissed for want of prosecution.