Hearst Corporation v. Frank Keller

The complaint herein was filed January 15, 1977, and was served on respondent on January 19, 1977. Thereafter no appearance was made by respondent and default judgment was entered on February 9, 1977, and a copy thereof mailed to respondent. On February 18, 1977, respondent phoned his attorney for an appointment and, on March 16, 1977, motion for relief from default with supporting affidavit was filed. The affidavit alleges a breach of contract by appellant that respondent would plead as a counterclaim. The affidavit does not make any allegations denying appellant's complaint. Respondent's affidavit offers as his reason for not proceeding sooner that he was unaware of the strict requirements of the rules requiring answers and counterclaims to be made within twenty days of service. I.R.C.P. 55(c) provides for setting aside a default judgment in accordance with I.R.C.P. 60(b). In pertinent part herein, the latter rule provides relief where a default judgment has been entered because of mistake, inadvertence, surprise or excusable neglect. Such a motion initially presents questions of fact to be determined by the trial court. However, where the motion was heard on the written record only and without oral testimony, the appellate court may exercise its own discretion in passing on the matter. Fisher v. Bunker Hill Co., 96 Idaho 341, 528 P.2d 903 (1974); Thomas v. Stevens, 78 Idaho 266, 300 P.2d 811 (1956).