(specially concurring).
A. The order setting aside the default judgment was final and appealable.
This case involves an appeal from an order setting aside a default judgment.
We must distinguish an appeal of an order setting aside a default judgment, from an appeal of a default judgment.
An order setting aside and holding for naught a default judgment is a “final judgment” and appealable. Starnes v. Starnes, 72 N.M. 142, 381 P.2d 423 (1963). An order overruling defendant’s motion to set aside a default judgment is final and appealable. Wooley v. Wicker, 75 N.M. 241, 403 P.2d 685 (1965). For a review of the cases on this subject, see Annot., Appealability of Order Setting Aside, or Refusing to Set Aside, Default Judgment, 8 A.L.R. 3d 1272 (1966).
In the instant case, the order setting aside the default judgment was final and appealable.
An appeal from a default judgment involves an interpretation of Rule 54(b)(1) and 54(b)(2) to determine whether the judgment is final and appealable. This case does not involve an appeal from a default judgment.
Rule 54(b)(1) involves multiple claims. If there is more than one claim for relief, a final judgment may be entered only on an express determination that there is no just reason for delay. Defendant claims the trial court retained jurisdiction of this matter, because plaintiff sought both compensatory and punitive damages and a default judgment was entered only on compensatory damages; that the trial court did not include the magic words that “There is no just reason for delay.”
A claim of tort for compensatory and punitive damages is one claim for relief, not two. There can be no claim for punitive damages alone. Crawford v. Taylor, 58 N.M. 340, 270 P.2d 978 (1954); Grandi v. LeSage, 74 N.M. 799, 399 P.2d 285 (1965). The trial court did not retain jurisdiction.
Rule 54(b) (2) involves multiple parties. The default judgment was entered only against defendant Albuquerque Anesthesia Services, Ltd. Under Rule 54(b)(2), a final judgment may be entered as to one of the parties unless the trial court expressly provides otherwise. The trial court did not provide otherwise and the default judgment was final and appealable.
B. Plaintiff was not entitled to default judgment as a matter of law.
Prior to the entry of the default judgment, plaintiff’s attorney was advised by defendant’s attorney’s office that they were entering this case. It was agreed orally that defendant had an extension of time to answer. On November 11, 1974, defendant’s attorney wrote plaintiff’s attorney and enclosed an order extending the time. On November 14, 1974, in response, plaintiff’s attorney wrote to defendant’s attorney :
Enclosed please find the original of your proposed Order extending time for response to the captioned case. You will note that the date has been corrected to November 21st, which was our originally agreed upon date.
Despite the agreement to extend time in which to answer, plaintiff filed a motion for, and obtained, a default judgment on November 19, 1974, without notice to defendant, because defendant did not enter a formal appearance.
An “appearance” has been defined as:
“A coming into court as a party to a suit, whether as plaintiff or defendant.
“The formal proceeding by which a defendant submits to the jurisdiction of the court.”
Childers v. Lahann, 18 N.M. 487, 490, 138 P. 202, 203 (1914), quoting from Bouvier’s Law Dictionary. Under this general rule, whether a party submits himself voluntarily to the jurisdiction of the court should be tried by the record and not by other evidence. In Childers, plaintiff failed to cite defendant to appear in the Supreme Court under one of its rules. Correspondence and conversations took place between opposing counsel and, among other things, plaintiff’s attorney applied to defendant’s attorney for an extension of time within which to file his brief, which was granted. Plaintiff’s attorney was led to believe that defendant’s attorney had waived citation and intended voluntarily to appear in the court. The Supreme Court decided that, under the facts of this case, defendant waived the citation and, for good cause shown, the Court permitted plaintiff to sue out and serve citation on defendant. The Court said:
The Court is always reluctant to dispose of any cause except upon the merits of the questions involved, unless required to do so by plain and explicit provisions of the statute, rule of court, or established procedure. [18 N.M. at 494, 138 P. at 205],
In Noble v. McKinley Land & Lumber Co., 30 N.M. 294, 232 P. 525 (1925), the signing of a consent by plaintiff that an order be entered extending the time for the filing of defendant’s brief, which consent defendant filed in the Supreme Court, constituted a “general appearance” by plaintiff and waived the issuance of a citation.
These cases hold that an opposing party has “appeared” in the Supreme Court in order to assist the party taking the appeal. The technical error is overcome by contacts between opposing counsel. The same rule applies in the district court under Rule 55(b) where an “appearance” is necessary to assist a party.
The Supreme Court has adopted a liberal construction of the word “appearance” required under Rule 55(b). All that is necessary to constitute an “appearance” to avoid a default judgment without notice, is an affirmative act by the party that shows knowledge of the suit and an intention to appear. This affirmative act can be shown by contacts between attorneys and even by letter from one attorney to the other, Mayfield v. Sparton Southwest, Inc., 81 N.M. 681, 472 P.2d 646 (1970); and where plaintiff’s attorney has acquiesced in defendant’s request for more time to answer. Hutton v. Fisher, 359 F.2d 913 (3rd Cir. 1966); United States v. Manos, 56 F.R.D. 655, 16 Fed.Rules Serv.2d 1575 (S.D.Ohio 1972) ; United States v. Melichar, 56 F.R. D. 49, 16 Fed.Rules Serv.2d 738 (E.D.Wis.1972) ; 6 Moore’s Federal Practice, § 55.05[3] (1976).
Defendant’s attorney did correspond with plaintiff’s attorney. Defendant’s attorney knew of the suit filed and intended to appear and defend. This constituted an “appearance”.
Before a default judgment is entered, the trial court should determine by record whether the three-day notice is required. It should inquire of the party seeking a default judgment whether any contacts occurred between opposing attorneys to determine whether the defaulting party knew of the pending action, intended to appear and defend, and did something affirmatively to show that this was the intention of the defaulting party.
It is established policy in the courts to say that default judgments are not favored; that, generally, cases should be decided on the merits; that Rule 55 should not be used to punish a technical violation of the Rules of Civil Procedure; that the notice requirement is a device intended to protect those parties who have indicated to the moving party a clear intent to defend the suit.
The default judgment granted plaintiff without notice was invalid and must be vacated as a matter of law. Mayfield, supra.
C. Plaintiff never called the default judgment to the attention of defendant and the district judge, other than the judge who recused himself, during proceedings in court.
Plaintiff contends that the trial court lacked jurisdiction to set aside the default judgment because of the compound errors of the defendant. I disagree. 'The record shows:
On October 11, 1974, plaintiff filed her complaint. Defendants were served with process the same day. Plaintiff’s attorney agreed that defendants would have until November 21, 1974 to answer. On November 19, 1974, plaintiff obtained a default judgment. A motion and order extending the time to answer was filed on November 20, 1974, at which time the court file did not contain the motion for default judgment or the default judgment which was stamped as having been filed on November 19, 1974. A copy of the motion for default was never mailed to or served on defendant’s attorneys. On November 21, 1974, defendants filed their answer. From November 21, 1974 until January 23, 1976, various motions were filed and proceedings had in court in which both defendants were represented. The judge who entered the default judgment had recused himself. Plaintiff disqualified a district judge and motions were heard before the present presiding judge. Defendants’ motions and a motion of plaintiff were heard, and an order entered on April 3, 1975, but the plaintiff did not inform the court or defendant of the default judgment. On June 10, 1975, the district judge reviewed the minutes of the corporation and ordered a portion thereof to be revealed. Plaintiff allowed the case to lay at rest until over a year had passed from the date of the default judgment. On January 23, 1976, plaintiff filed for and received a writ of garnishment on the default judgment and served it on defendant. This was the first time that defendant and defendant’s attorney learned of the default judgment.
Even though there is no merit to the contention, plaintiff now claims that Rule 60(b) was not applicable because more than one year had passed after the default judgment was entered. The fact that plaintiff waited for more than one year to proceed on the default judgment gives the appearance of a ruse to avoid Rule 60(b).
I can find no errors on the part of the defendant’s attorneys.
Appellant’s brief states:
Appellant urges that if Appellee looked into the Court files, it indeed acknowledged it was in default; had it pursued its case with the responsibility associated with lawyers’ professional conduct, Appellant would not be here today. Avenues were open, but not pursued.
I cannot find any statute, rule or practice which compels an attorney to search the court file to determine whether any improper conduct has occurred. On the other hand, if plaintiff’s attorney had called to defendant’s attention and to the attention of the presiding judge that a default judgment had been entered, we would not be here today. The first canon of the Code of Professional Responsibility provides that “A lawyer should assist in maintaining the integrity and competence of the legal profession”, and the second canon states that “A lawyer shall not: . ¡ . (5) Engage in conduct that is prejudicial to the administration of justice.” Section 18-5-1, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.).
To me this means “fair play” of opposing counsel in the administration of justice. Lawyers should not attempt to take advantage of technical errors under the rules of procedure. Neither the trial court nor this Court will condone this practice.