Nehring v. Raikos

ON PETITION FOR REHEARING

SHIELDS, Judge.

John D. Raikos petitions this court to rehear on appeal decided adversely to him on December 15,1980 in a published opinion appearing at 413 N.E.2d 328, Ind.App.

Although we decline the invitation to rehear the appeal, we find it necessary to clarify our holding due to apparent misconceptions by both parties.

Paul M. Nehring filed a motion for enlargement of time after the expiration of the period specified for filing a responsive pleading. Ind. Rules of Procedure, Trial Rule 6(C). We held that, although Nehring was in default, he could appear in the action and request an extension of time to file a responsive pleading. In accordance with Ind. Rules of Procedure, Trial Rule 6(B)(2), the trial court, in its discretion, could grant the extension and allow the filing of a responsive pleading upon a showing of excusable neglect.

We reversed the default judgment because Nehring did just that. He appeared in the action by filing a motion for enlargement of time. Having appeared, he was entitled to written notice of the application for default judgment at least three days prior to the hearing on the application, which notice he did not receive.

Contrary to the parties’ belief, we did not find that Nehring had demonstrated excusable neglect to justify either the grant of his motion for extension of time or his motion for relief from the default judgment.

Petition denied.

BUCHANAN, C. J., concurs. SULLIVAN, J., concurring opinion.