Ayoub v. Gue
Ayoub v. Gue
Opinion of the Court
This appeal is taken from the denial of a motion to vacate a default judgment. The question presented is whether the procedural requirements are met when information sought by a motion for more definite statement is furnished the movant in the form of a letter.
The facts are these: Plaintiffs brought suit for damages alleging breach of contract. After service of the complaint, defendant filed a motion for more definite statement under the provisions of Municipal Court Civil Rule 12(e).
“Defendant’s Motion for More Definite Statement is granted. Plaintiff to inform Defendant as to the proposed method for computation of damages. Answer to be filed within 5 days.”
The information sought by the motion was supplied in a letter to defendant’s counsel and, other than an exchange of correspondence between counsel, no further action was taken until four months later when a default judgment was recorded by the clerk. Thereafter, the case was set on the motions calendar for ex parte proof of damages. A jury was impaneled
While a motion for more definite statement does- not generally lie as to allegations of damages,
An order granting a motion for more definite statement concedes that the movant is entitled to information not furnished by his adversary’s pleading, without which a responsive pleading cannot properly be prepared. The data obtained becomes a part of the pleadings
When the judgment of default was recorded by the clerk, only two entries appeared on the jacket. The first indicated that the case had been placed on the motions calendar. The second was the previously quoted order of the court granting the motion for more definite statement. The record did not contain an amended complaint or any other entry to indicate that there had been a compliance with the court’s order. So long as the record reflected that there remained undisposed a motion to make the complaint more definite and certain, the clerk was without power to enter a judgment of default. As pointed out in Fort Stevens Pharmacy, Inc., v. Hollywood Credit Cloth. Co., D.C.Mun.App., 126 A.2d 309, relief from a judgment is available under Rule 60(b) (6), when it is entered without the power to do so.
Slight abuse of discretion in refusing to set aside a default judgment is
Reversed with instructions to set aside the entry of default and the judgment.
. Rule 12(e) provides: “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move, within 5 days after the service of the pleading upon him, for a more definite statement before interposing his responsive plead-
. 2 Moore’s Federal Practice, Para. 12.18 [3] (2d ed. 1948).
. The motion was filed eleven days after service of complaint. In this connection, see footnote 1.
. 1 Barron and Holtzoff, Federal Practice and Procedure § 362 (1950).
Reference
- Full Case Name
- John J. AYOUB v. J. Paul GUE, t/a J. P. Gue and Son and Raymond B. Miller
- Status
- Published