Opinion
No. 78-188
Decided November 15, 1978
Judgments — Default — Relief Where corporation purchased the assets of defendant automobile agency, and notified all disclosed creditors of the agency that it had purchased the agency's assets, and the notice and list of creditors' names supplied did not include the plaintiff, and plaintiff instituted suit to recover in assumpsit for breach of contract, and where service was made on the business manager of purchaser corporation, and an attorney, apparently intending to enter an appearance on behalf of the automobile agency, entered an appearance which was interpreted by the superior court as being on behalf of both corporate defendants, the attorney withdrawing for the agency only, two-and-one-half years later, trial court did not abuse its discretion in denying purchaser corporation's motion to strike default judgments entered against both the automobile agency and purchaser corporation for failing to appear at a pretrial call of the list subsequent to the attorney's withdrawal.
Flynn, McGuirk Blanchard, of Portsmouth (Raymond P. Blanchard orally), for the plaintiff.
Boynton, Waldron, Dill Aeschliman, of Portsmouth (Richard E. Dill orally), for the defendants.
MEMORANDUM
On March 2, 1973, Dover Ford, Inc. [hereinafter Dover], purchased the assets of Brodhead Ford Sales [hereinafter Brodhead], and notified all disclosed creditors of Brodhead that it had purchased Brodhead's assets. The notice and list of creditors' names supplied did not include the plaintiff. The plaintiff instituted suit in June 1973 to recover in assumpsit for a breach of contract. Service was made on Brodhead and one "Bob Brodeur, person in apparent charge" of Dover. Brodhead was in fact the business manager of Dover at the time. An attorney, apparently intending to enter an appearance on behalf of Brodhead, entered an appearance which was interpreted by the superior court as being on behalf of both corporate defendants. Two-and-one-half years later that attorney withdrew for Brodhead only. Because no one appeared for either Brodhead or Dover at a subsequent pretrial call of the list, default judgments were entered against them. Plaintiff filed an affidavit of damages, and damages of $3,300 were assessed. Dover's motion to strike the default was denied by the superior court, and its exception was transferred here by Bean, J.
We note that but for the fact that the appearance originally filed by Brodhead's attorney was assumed by court personnel to be filed on behalf of Dover also, the latter would have been defaulted in 1973 rather than in 1976.
Upon a review of the file and exhibits we find no abuse of discretion by the trial court. See Lewellyn v. Follansbee, 94 N.H. 111, 47 A.2d 572 (1946); Superior Court Rule 14.
Exceptions overruled.