Trial Court Erred By Not Setting Aside Default Where Party Missed Hearing Due to Hospitalization
The default judgment was entered in this divorce proceeding after the husband's counsel withdrew and the husband missed the final hearing. However, the husband moved to set aside the default on the basis that he missed the hearing due to his hospitalization for observation due to suicidal impulses and threats. The trial court denied the motion to set aside, and the Court of Civil Appeals reversed. The court noted that cases should be heard on the merits whenever practicable, and this is especially true domestic relations cases.
Also, it is worth noting that the motion to set aside was styled as a Rule 55(c) motion. The motion was filed 31 days after the entry of default. This is untimely, as Rule 55 motions must be filed within 30 days. However, Rule 60(b)(1) allows relief in some instances more than 30 days after the entry. It is not clear from the opinion when the motion was converted to a Rule 60 motion, or if the court did so sua sponte. But, the court considered the motion even though it was a Rule 55 motion filed more than 30 days after the entry of default.
