(specially concurring).
I specially concur.
The course of events in this physical fight between two brothers is typical of a case that exemplifies a waste of time and expense. This family feud, three years of age, should end and the case dismissed.
On July 13, 1979, plaintiff filed a complaint against defendant, his brother, for assault and battery.
On June 9, 1980, IOV2 months later, a summons was filed which showed that on July 24, 1979, Orlando Romero served the summons and complaint on defendant. On the same day, plaintiff filed a motion for default judgment, the district court clerk certified no appearance for defendant, and default judgment was entered against defendant for $15,000.00. This concluded the services of plaintiff’s attorney.
On July 28, 1981, almost two years after the complaint was filed, execution was issued at request of the present lawyer for plaintiff.
On. August 11, 1981, defendant entered his appearance and filed a motion with affidavits to set aside the default judgment.
On August 14, 1981, defendant filed a petition for a temporary restraining order to stop the sheriff from enforcing the execution.
On August 18, 1981, a temporary restraining order was entered in which defendant’s motion was set for hearing August 25, 1981.
On August 25, 1981, a hearing was held. Defendant and wife testified that summons was never served on them. Plaintiff subpoenaed Orlando Romero to testify on plaintiff’s behalf. On direct examination, Romero testified that summons was served on defendant. At the close of his direct testimony, the court announced:
I’m sorry, I won’t be able to conclude this. We’ll have to take some time and come back. I’ve got these criminal matters.
On September 21, 1981, plaintiff’s attorney appeared alone before the court and asked the court to deny defendant’s motion and allow the default judgment to stand. The court said:
I so find.
Plaintiff’s attorney said:
I will prepare an order Your Honor, and bring it by for your signature.
On September 23, 1981, defendant filed a motion with affidavits in which it requested the trial court to allow defendant to present the balance of this case which summarily ended on August 25, 1981.
On September 28, 1981, the parties appeared before the court and reviewed the prior proceedings at length. Defendant requested the court not to enter an order prepared by plaintiff’s attorney which would deny defendant’s motion to set aside the judgment. The parties and the court agreed to allow defendant to finish the hearing held on August 25, 1981.
On November 9,1981, plaintiff’s attorney and defendant and his attorney appeared in court. Defendant called Orlando Romero for cross-examination. He was not present. A dispute arose over whether plaintiff or defendant should. subpoena Romero to appear. Defendant moved to strike Romero’s testimony since he failed to show up for cross-examination. An extended argument took place. The court stated:
I want to reserve ruling.
Defendant and his wife testified again and controverted the testimony of Romero. Another witness was called by defendant. Again, extended argument followed. At the close of argument, the court answered:
I’m going to have to go back and look at the record of prior hearings, and I’ll get back to counsel as soon as I can.
On November 12, 1981, the court wrote opposing lawyers a letter in which it announced:
I deny defendant’s motion to set aside the judgment.
On November 15, 1981, an order was entered in which the court found:
(1) That service of process was properly effected on Defendant Felix Armijo on July 24, 1979.
(2) That the Default Judgment entered in this case on June 9, 1980, was entered pursuant to applicable New Mexico law and was proper in all respects.
(3) That Defendant’s Motion should be denied based upon the evidence adduced and other matters properly before the Court’s consideration.
The default judgment was affirmed and defendant’s motion to set it aside denied.
Defendant appealed.
“A motion to set aside a default judgment is addressed to the sound discretion of the trial judge, whose ruling will not be reversed except for abuse of that discretion.”. Springer Corporation v. Herrera, 85 N.M. 201, 202, 510 P.2d 1072 (1973). The trial court abused its discretion.
First, no default judgment should be summarily entered IOV2 months after a complaint is filed without inquiry by the court or some explanation by plaintiff. To fail to do so constitutes an abuse of discretion. See Herrera v. Springer Corporation, 85 N.M. 6, 16, 508 P.2d 1303 (Ct.App.1973), Sutin, J., dissenting. The onerous consequences which follow a default judgment do not justify plaintiff appearing before the court with a judgment in hand to be signed under the circumstances of this case. Nothing appears to show that at the time the judgment was signed, the record was before the court or any proceedings held. Before any default judgment is entered, a record should be made, especially so when process is filed 10V2 months after allegedly served, no explanation given for the delay and the failure of the defendant to appear. Did any contact take place between the parties during this interim period? If service were made, did plaintiff lead defendant to believe the complaint would be dismissed? Was service of summons actually made? Six weeks after the default judgment was obtained by plaintiff’s lawyers, another lawyer pursued execution and all other proceedings. No explanation appears for the change of lawyers at this crucial time.
Summary default judgments when seriously questioned should be set aside.
Second, “Where the opposing party, without fault on his part, is deprived of the opportunity of a cross-examination, it is generally held that he is entitled to have the direct testimony stricken from the record.” Citizens Bank & Trust Co. v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318, 320 (1939); State v. Gardner, 269 S.C. 698, 239 S.E.2d 729 (1977); A. H. Angerstein, Inc. v. Jankowski, 55 Del.Super. 304, 187 A.2d 81 (1962); Best v. Tavenner, 189 Or. 46, 218 P.2d 471 (1950); Nehring v. Smith, 243 Iowa 225, 49 N.W.2d 831 (1951); 98 C.J.S. Witnesses § 373 (1957); 81 Am.Jur.2d Witnesses § 465 (1976). When importance of direct testimony appears, the failure of the court to recall the witness is an abuse of discretion. People v. Manchetti, 29 Cal.2d 452, 175 P.2d 533 (1946).
The precise question involved was whether Orlando Romero served the summons on defendant. The purpose and object of cross-examination are so well known, it is unnecessary to state them. See, State v. Anaya, 79 N.M. 43, 439 P.2d 561 (Ct.App.1968); Jankowski, supra; Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964); 98 C.J.S. Witnesses § 372, 483; 81 Am.Jur.2d Witnesses § 520. The trial court erred in denying defendant’s motion to strike Romero’s testimony. It should be stricken from the record below.
Absent Romero’s testimony, the only evidence before the court is the notarized summons of Romero that process was served and the denial thereof by defendant and his wife.
The Final Order entered on November 16, 1981, should be reversed. On remand, the Order entered below should be vacated and set aside. The trial court should weigh the evidence of the summons issued and served absent Romero’s testimony against the testimony of defendant and his wife, make a finding of fact, and enter an order affirming or vacating the default judgment. If the default judgment is affirmed, a hearing must be held on the issue of damages. If the default judgment is vacated, defendant must be allowed to file an answer to plaintiff’s complaint.
The costs of this appeal should be paid by plaintiff.