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Vechery v. McCabe

Superior Court of Delaware, New Castle County

October 16, 1953

VECHERY
v.
McCABE.

Motion to open a default judgment entered in action against movant for damages arising out of an automobile accident which occurred when plaintiff was a passenger in movant's automobile. The Superior Court, Layton, J., held that movant was not entitled under circumstances to have default judgment vacated on ground of excusable neglect due to movant's ignorance, regardless of whether movant had good defense to action.

Motions denied.

Motion to enter special appearance and to vacate judgment. denied.

This is a motion to open a default judgment resulting from an automobile accident in July 1952, in which plaintiff was a passenger in defendant's automobile.

Sometime in the Spring of 1953, defendant received from plaintiffs' attorney a letter making a demand for damages. This was delivered to a representative of defendant's insurance company. On July 1, plaintiff instituted action and on July 8, defendant was served personally with a summons which contained, inter alia, the following language in bold print:

[48 Del. 196] ‘ In case of your failure, within 20 days after service hereof upon you, * * * to serve on plaintiff's attorney named above an answer to the complaint * * *, judgment by default will be rendered against you * * *.’

Despite this, defendant did not notify his insurance carrier of these facts until August 21, 1953, at which time he delivered the process to one on its representatives. In connection with his prayer to open and vacate this judgment, defendant has filed an affidavit alleging that he has a good defense to the action and that his failure to take steps to institute a defense was due to his ignorance that judgment would be taken unless he did so within 20 days.

David Snellenburg II, Wilmington, for plaintiffs.

Joseph H. Flanzer, Wilmington, for defendant.

LAYTON, Judge.

The application to open and vacate this judgment is based on Rule 60(b) of the Civil Rules of the Superior Court Del.C.Ann. which, insofar as material here, reads as follows:

‘ On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment * * *

Page 461

for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * *.’

Here we have a party, himself in the insurance business, who receives a letter from a lawyer making some form of demand upon him as the result of an automobile accident and who promptly forwards this demand to his insurance carrier; who, later, on July 2, received a copy of a petition and order for the appointment of a next friend in a suit obviously calculated to be brought against him; who was personally served with process on July 8, which clearly explained that he must answer within 20 days or suffer a default judgment; who does nothing until August ...


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