Peck v. Cook

Plaintiff entered a default judgment against defendant on January 24, 1972. The following February 28, defendant was adjudged a bankrupt. On August 7, 1972, plaintiff filed an ex parte motion to set aside the default judgment on the ground that through the mistake, inadvertence, and excusable neglect of his attorney, he had failed to allege that defendant induced the debt through fraud. An order was entered granting plaintiff’s motion. On September 19, 1972, defendant filed a motion to set aside the prior order; this motion was granted October 12, 1972. Plaintiff appeals from this later order.

Rule 60(b), U.R.C.P., provides that a motion under subdivision (1) mistake, inadvertence, surprise, or excusable neglect, shall be made not more than three months after the judgment was entered. Plaintiff’s motion was not timely filed. The order of the trial court is affirmed. Costs are awarded to defendant.