Webb v. Lambert

Robert H. Dudley, Justice. The defendant did not file an answer within 20 days following service of summons, but, instead, filed an answer on the 28th day. The defendant did not offer any evidence of excusable neglect, unavoidable casualty, or other just cause for the late answer, but, even so, the trial court refused to grant a default judgment. We reverse and remand. The plaintiff filed suit, and the defendant was personally served on October 29, 1985. The defendant, a resident of Arkansas, employed an attorney who mailed an answer to the plaintiff’s attorney on November 15, 1985, which was within 20 days of the date of service. The plaintiff’s attorney quite naturally assumed that the answer had been filed with the clerk of the court, but, in fact, the defendant’s attorney had not filed an answer with the clerk, and did not do so until November 26, 1985, which was 28 days after service. The defendant’s attorney did not disclose the late filing to the plaintiff’s attorney. On May 14, 1987, just before the trial was scheduled to begin, the plaintiff’s attorney examined the court file and found the out-of-date answer. He immediately moved to strike the answer and also moved for a default judgment. Still before the trial began, the Chancellor had a hearing on both of the motions. At that hearing, the defendant did not offer any evidence of excusable neglect, unavoidable casualty, or other just cause. The Chancellor took the motions under advisement and went ahead with the trial. Later, the Chancellor denied the motion to strike the answer, denied the motion for a default judgment, and ruled against the plaintiff on the merits of this equitable lien case. The plaintiff appeals from the trial court’s refusal to strike the answer and enter a default judgment. Under ARCP Rule 12(a), a resident defendant is required to file an answer within 20 days of the date of service. To “file” an answer means that the answer “shall be filed with the clerk of the court” Rule 5(c), or with the judge, Rule 5(d). Neither was done. Upon failure of a resident defendant to file an answer within 20 days the court “shall” grant a default judgment under Rule 55(a), unless there is excusable neglect, unavoidable casualty, or other just cause as provided in Rule 6(b). In the absence of excusable neglect, unavoidable casualty, or other just cause, it is an abuse of discretion for the trial judge to refuse to grant a default judgment. DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). Here, there was no showing of excusable neglect, unavoidable casualty, or other just cause. Therefore, the trial court abused its discretion in refusing to strike the answer and in refusing to grant the default judgment. We reverse and remand for proceedings consistent with this opinion. Holt, C.J., Hays and Glaze, JJ., dissent.