Appellate Law

Rule 55(c) Motion To Set Aside Default Must Be Ruled Upon In 90 Days; Party In Default Cannot Assert Claim

In McGugin v. McGugin, [Ms. 2071188] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals dismissed an appeal from being from a void judgment after the trial court held proceedings in a case after it failed to rule on a  Rule 55(c) motion to set aside default judgment.

The ex-wife instituted an action against the ex-husband for contempt for failure to pay child support.  The trial court rendered a default judgment after the ex-husband failed to appear for a hearing.   After the trial court rendered the default judgment, but before the default was entered, the ex-husband appeared and filed a Rule 55(c) motion to set aside the default and filed a counterclaim.  The trial court never ruled on the Rule 55(c) motion, but rather tried the case.  The ex-wife appealed from the ultimate ruling of the trial court.

The Court of Civil Appeals dismissed the appeal as being from a void judgment.  First, because the Rule 55(c) motion was filed before the default was entered, it was held in abeyance and considered filed on the date the default was entered.  Pursuant to Rule 59.1, the trial court had 90 days to rule on the motion to set aside default or else it would be denied by operation of law.  The trial court never ruled on the motion.  After the Rule 55(c) motion was denied by operation of law, the trial court lost jurisdiction to act on the case and, therefore, its orders and judgment made after that date were void.

The counterclaim filed by the ex-husband did not prevent the default judgment from becoming final.  "After an entry of default, the defaulting party 'loses his standing in court, cannot appear in any way, cannot adduce evidence and cannot be heard at the final hearing.'"  Slip Op. p. 5, quoting Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 670 (Ala. 1981).  Thus, because the default was never set aside, the counterclaim was never properly in the case.

Full post as published by Alabama Appellate Watch on May 15, 2009 (boomark / email).