N.M. R. Civ. P. Dist. Ct. 1-055
N.M. R. Civ. P. Dist. Ct. 1-055
Committee commentary. - Paragraph B of this rule was revised in 2016 to provide additional protections to consumers in consumer debt collection cases. See Comment to Rule 1-009 NMRA. Paragraph B references Rule 1-009(J)(2) NMRA, under which, if the party seeking relief in a consumer debt claim has not served and filed with the district court the instrument of writing on which the party's claim is based, the district court shall not enter a default judgment without the court's finding of the party's good cause failure to do so. For cases involving a negotiable instrument which is not part of a consumer debt claim, Paragraph E of this rule requires that the original negotiable instrument be filed with the court unless the party seeking default judgment provides sufficient alternative evidence to demonstrate the party?s right to relief.
[As adopted by Supreme Court Order No. 16-8300-031, effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court Order No. 19-8300-017, effective for all cases pending or filed on or after December 31, 2019.]
.ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-031, effective July 1, 2017, provided new procedures for consumer debt cases, amended the rule to conform with new provisions in Rules 1-009 and 1-017 NMRA and Form 4-226 NMRA, made certain stylistic changes, and added the committee commentary; in Paragraph B, after "shall apply to the court", deleted "therefor" and added "for judgment by default", after "who has appeared", deleted "therein" and added "in the action", after "prior to the hearing on", deleted "such" and added "the", added "In cases controlled by Rule 1-009(J) NMRA, prior to entry of default judgment the court shall determine that the party seeking relief has stated a claim on which relief can be granted, has complied with Rules 1-009(J)(2) and 1-017(E) NMRA, and has substantially complied with the requirements of Form 4-226 NMRA.", after "the court may conduct", deleted "such" and added "those", and after "hearings or order", deleted "such" and added "those"; in Paragraph D, after "the limitations of", deleted "Paragraph C of", and after "Rule 1-054", added "(C); and in Paragraph E, after "officer or agency", deleted "thereof" and added "of the state", and after "in any case based", deleted "upon" and added "on". The 1999 amendment, effective August 27, 1999, in Paragraph B, inserted "committee" in the first sentence; in Paragraph E, substituted "Limitations" for "Judgments against the state; exceptions" in the bold heading and substituted "unless the original negotiable instrument is filed with the court and merged with the judgment" for "or where the party was only constructively served with the process"; and substituted "the party's" for "his" throughout the rule.
For default judgment in garnishment, see Section 35-12-4 NMSA 1978. For statutes relating to judgments, see Sections 39-1-1 to 39-1-20 NMSA 1978. For default in quiet title suit, see Section 42-6-7 NMSA 1978. Compiler's notes. - This rule is deemed to have superseded 105-421, C.S. 1929, as to failure to respond to an answer containing new matter, and 105-804, C.S. 1929, relating to default judgments. This rule, together with Rules 1-020, 1-040 and 1-041 NMRA, is deemed to have superseded 105-819, C.S. 1929, relating to trial in absence of a party and separate trials. I. GENERAL CONSIDERATION. Applicability. - Where judgment was on the merits after due notice, this rule had no application. State Collection Bureau v. Roybal, 1958-NMSC-074, 64 N.M. 275, 327 P.2d 337. Not to be used in dispute over forum non conveniens. - A default judgment is not a tool to be used in a dispute over forum non conveniens or the propriety of another court's actions. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. Federal decisions persuasive. - Since New Mexico adopted federal rule as its own, federal cases, while not controlling, are quite persuasive. State Collection Bureau v. Roybal, 1958-NMSC-074, 64 N.M. 275, 327 P.2d 337. II. ENTRY OF DEFAULT. "Default". - "Default" to be entered by the clerk under Subdivision (a) (see now Paragraph A) is a statement in appropriate form as to the state of the record, which serves to invite attention of the court to party's omission to plead or otherwise defend, and to fact that case is ripe for entry of judgment by default. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Certain elements must be present for entry of default by clerk under Subdivision (a) (see now Paragraph A); there must be claim for affirmative relief and a failure to plead or otherwise defend on the part of the opposing party. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Simultaneous entry of default and judgment. - Since entry of default is only a formal matter, entry of default and default judgment may be simultaneous, and by a single instrument. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. III. JUDGMENT BY DEFAULT. A. IN GENERAL. Entry of default and default judgment may be simultaneous, and by a single instrument, since entry of default is only a formal matter. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797 (1962). Judgment by default does not involve merits of case; it is based solely upon fact that, whatever case the party had, he did not appear at the proper time to present it. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Default as protection from unresponsive party. - Default judgment must normally be viewed as available only when adversary process has been halted because of an essentially unresponsive party, in which instance diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights; furthermore, possibility of default is a deterrent to those parties who choose delay as part of their litigative strategy. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Judgment goes by default whenever between commencement of suit and its anticipated decision in court either of the parties omits or refuses to pursue, in the regular method, ordinary measures of prosecution or defense. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Court had authority to enter default judgment on the basis of defendant's failure to attend the pretrial conference and his failure to obtain counsel as ordered by the court, as these were failures to "otherwise defend." Kutz v. Indep. Publ'g Co., 1984-NMCA-081, 101 N.M. 587, 686 P.2d 277. Judgment not "by default". - Where appellants defaulted by failure to appear in court at time appointed for trial of issues, appellee was entitled to proceed with the hearing and offer evidence to sustain pleadings; the resultant judgment was not in a strict sense judgment by default within the meaning of this rule, but rather final judgment on the merits. Ranchers Exploration & Dev. Co. v. Benedict, 1957-NMSC-076, 63 N.M. 163, 315 P.2d 228. An ex parte order modifying an award of custody and child support was not a default judgment but a decision on the merits where, following a hearing, husband failed to file findings of fact and conclusions of law in time. Skelton v. Gray, 1984-NMSC-051, 101 N.M. 158, 679 P.2d 826. Generally, default judgment precludes trial of facts, except as to damages, as the allegations of the complaint, in effect, become findings of fact. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Admission of allegations in complaint. - By virtue of default judgment defendants are taken to have admitted the allegations of the complaint; for those matters which require examination of details, plaintiff must furnish proof. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Default judgments are not favored, and, generally, cases should be decided on their merits. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62; Farms v. Carlsbad Riverside Terrace Apts., Inc., 1973-NMSC-020, 84 N.M. 624, 506 P.2d 781. This rule should not be used to punish technical violations of the Rules of Civil Procedure. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Discretion of trial court. - Whether default judgment should be granted rests within sound discretion of the trial court, and the same is true of motion to set aside the default judgment. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284; Hubbard v. Howell, 1980-NMSC-015, 94 N.M. 36, 607 P.2d 123. It lies within sound discretion of trial court to refuse entry of default judgment. Farms v. Carlsbad Riverside Terrace Apts., Inc., 1973-NMSC-020, 84 N.M. 624, 506 P.2d 781. Doubts resolved in favor of defaulting defendant. - Any doubts about whether relief should be granted are resolved in favor of the defaulting defendant because default judgments are not favored in the law; in the absence of a showing of prejudice to the plaintiff, cases should be tried upon the merits. Dyer v. Pacheco, 1982-NMCA-148, 98 N.M. 670, 651 P.2d 1314. Default judgments against state. - It is apparent that the exception at the end of Paragraph E applies to the prohibition of a default judgment against the state. A default judgment, therefore, is available against the state if the claimant establishes his right to relief. Caristo v. Sullivan, 1991-NMSC-088, 112 N.M. 623, 818 P.2d 401. Default judgment was properly entered where, for 10 months defendants failed to comply with the Rules of Civil Procedure, filed consent to withdrawal of their attorneys and failed to obtain other attorneys and failed to appear at the hearing on motion for default judgment or to show any cause, oral or written, why default judgment should not be entered. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Failure to seek extension. - Default judgment was properly entered notwithstanding fact that after notice and before entry of judgment, appellant filed a general denial, where defendant did not apply for enlargement of time to plead pursuant to Rule 6(b) (see now Rule 1-006 NMRA). Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Inadequate answer. - After answer to verified complaint was stricken out as "sham and unverified," and defendant had elected to stand on his answer, it was not error to adjudge him in default and to render judgment without first acting on his motion for security for costs filed with his answer. Pilant v. S. Hirsch & Co., 1907-NMSC-003, 14 N.M. 11, 88 P. 1129. Failure to appear. - Subsequent withdrawal of appeal by attorney, without leave of court, left record in condition where judgment by default for want of appearance could be entered, and the supreme court of the territory did not err in affirming trial court's denial of defendant's motion to vacate default judgment. Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U.S. 603, 19 S. Ct. 761, 43 L. Ed. 1103 (1899). A "constructive appearance" may be found when the defaulted party's overt actions show an intent to submit to the jurisdiction of the court. State ex rel. N.M. State Police Dep't v. One 1984 Pontiac 6000, 1990-NMCA-085, 111 N.M. 85, 801 P.2d 667, aff'd, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274. Default judgment properly denied. - Trial court did not err in denying defendant's motion for default judgment where plaintiff's allegedly late reply to defendant's counterclaim reply was filed prior to defendant's motion, and notice requirements of Subdivision (b) (see now Paragraph B) were not complied with. The case had been set for trial and was proceeding to trial on the merits and no claim was made that late filing of the reply in any way prejudiced defendant. Farms v. Carlsbad Riverside Terrace Apts., Inc., 1973-NMSC-020, 84 N.M. 624, 506 P.2d 781. In city's suit against hotel operator to recover license tax, with answer of illegality of tax, and tender of payment of amount defendant thought to be due, to which there was no reply, defendant, waiving all defense except tender, was not entitled to judgment by default for failure to reply to new matter in answer, without proof as to correct amount of tax. City of Raton v. Seaberg, 1937-NMSC-041, 41 N.M. 459, 70 P.2d 906. Where answer setting up new matter was filed on June 30, and, no reply having been filed, defendant on July 23 filed motion asking that new matter set up in answer be taken as confessed, trial court's overruling of motion was sustained on appeal for failure of record to show that answer had been served on counsel for plaintiff twenty days prior to filing of motion. Armstrong v. Concklin, 1921-NMSC-085, 27 N.M. 550, 202 P. 985. Insured defendant who immediately gives process and complaint to his insurance agent, is not grossly negligent or ordinarily careless in not making inquiry as to the progress of the action. Dyer v. Pacheco, 1982-NMCA-148, 98 N.M. 670, 651 P.2d 1314. Default by administrator. - Where administrator is sued as such, without allegation of assets in his hands, and he defaults, he is not personally liable, and judgment should authorize only a levy against goods of deceased in hands of administrator, and, if not sufficient to satisfy judgment, then costs only to be levied de bonis propriis, but where there is an allegation of assets in hands of administrator, his default is an admission of assets to extent charged in proceedings against him. Senescal v. Bolton, 1893-NMSC-035, 7 N.M. 351, 34 P. 446. Waiver by going to trial. - By going to trial on the merits and not objecting to evidence, defendant waived any rights he may have had consequent upon the cross-complainant's failure to reply to his answer. Lohman v. Reymond, 1913-NMSC-069, 18 N.M. 225, 137 P. 375. Place of judgment. - Under 105-801, C.S. 1929 (39-1-1 NMSA 1978), a default judgment may be rendered by a judge of district court at any place where he may be in state. Singleton v. Sanabrea, 1931-NMSC-034, 35 N.M. 491, 2 P.2d 119. B. NOTICE. Notice constitutionally required. - Failure to give notice pursuant to Subdivision (b) (see now Paragraph B) coupled with giving of default judgment without hearing or notice of hearing, when matters stood at issue, constituted a violation of the due process clause of the New Mexico Constitution. Adams & McGahey v. Neill, 1954-NMSC-116, 58 N.M. 782, 276 P.2d 913, distinguished, Houston Fire & Cas. Ins. Co. v. Falls, 1960-NMSC-065, 67 N.M. 189, 354 P.2d 127; Midwest Royalties, Inc. v. Simmons, 1956-NMSC-084, 61 N.M. 399, 301 P.2d 334. Purpose of notice. - Notice requirement is device intended to protect those parties who have indicated to the moving party clear intent to defend the suit. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Purpose of three-day notice is not to give party time within which to plead defensively, but to seek to set aside default as provided by Subdivision (c) (see now Paragraph C) and for enlargement of time within which to plead in accordance with Rule 6(b) (see now Rule 1-006 NMRA). Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Notice is required only when party has appeared in action; since the defendant did not appear, the plaintiff was entitled to a default judgment without contacting the defendant's counsel. Rummel v. Edgemont Realty Partners, Ltd., 1993-NMCA-085, 116 N.M. 23, 859 P.2d 491. Because defendant never filed any documents with the court prior to entry of default, plaintiff had no duty to provide any notice to defendant before seeking default judgment. Adams v. Para-Chem Southern, 1998-NMCA-161, 126 N.M. 189, 967 P.2d 864. "Appearance". - An "appearance" is a coming into court as party to suit, whether as plaintiff or defendant, or the formal proceeding by which defendant submits to jurisdiction of the court. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Defendant's attendance at a deposition nearly eight months before he was served with a summons and a copy of the amended complaint cannot be considered an "appearance" under Paragraph B because it could not possibly have indicated either knowledge of the suit against him or an intention to meet his obligation as a party. Therefore, defendant was not entitled to notice of the applications for default judgments against him. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527. Letters and telephone calls between lawyers indicating no more than an awareness of a lawsuit is not enough; the defaulted party must take some affirmative action to signify to the court an intention to submit to its jurisdiction in order to consider that he has made an "appearance". Merrill v. Tabachin, Inc., 1988-NMSC-097, 107 N.M. 802, 765 P.2d 1170. Effect of appearance. - Appearance alone, where there has been no pleading, does not prevent party from becoming in default, but if such appearance is entered prior to default, such party is entitled to three days' notice of application to court for default judgment. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Affirmative act showing intent to appear. - All that is necessary to constitute an "appearance" to avoid default judgment without notice, is an affirmative act by the party showing knowledge of the suit and intention to appear; this affirmative act can be shown by contacts between attorneys, by letter from one attorney to the other or where plaintiff's attorney has acquiesced in defendant's request for more time to answer. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Where party's intention to appear is clearly manifested in acts of its agent, such acts constitute an appearance within scope of this rule. Mayfield v. Sparton S.W., Inc., 1970-NMSC-103, 81 N.M. 681, 472 P.2d 646. Garnishee's attempt to answer interrogatories in a letter to clerk, copy of which he sent to appellee's counsel, and payment into court of what he thought was owing, clearly indicated intention to meet obligations of party to law suit and to submit to court's jurisdiction. Mayfield v. Sparton S.W., Inc., 1970-NMSC-103, 81 N.M. 681, 472 P.2d 646. Determination of necessity for notice. - Before default judgment is entered, trial court should determine by record whether three-day notice is required, inquiring of party seeking default judgment whether any contacts occurred between opposing attorneys so as to determine whether defaulting party knew of the pending action intended to appear and defend and did something affirmatively to show this intention. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Notice of damages hearing. - Although Paragraph B does not by its terms require written notice of such a hearing to the party against whom default judgment is sought, the damages hearing must be regarded as a hearing on the application for default judgment and written notice must be given if the party "has appeared in the action", but where defendant has failed to make an appearance in the case he is not entitled to notice of the damages hearing in accordance with the requirements of Paragraph B. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527. Notice in eminent domain proceedings. - Subdivision (b) (see now Paragraph B) is applicable to entry of default in eminent domain proceedings filed under "special alternative procedure," and failure to give required notice requires reversal of default judgment. Board of Cnty. Comm'rs v. Boyd, 1962-NMSC-090, 70 N.M. 254, 372 P.2d 828. Where defendant failed to appear after service. - A district court is not required by Paragraph B of this rule or by due process of law to set aside for lack of notice default judgments entered against a defendant who failed to appear in the action after being personally served with process. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527. Vacation of default entered without requisite notice. - Where notice of motion for a default judgment is required, but not given, judgment entered must be vacated as a matter of law. Mayfield v. Sparton S.W., Inc., 1970-NMSC-103, 81 N.M. 681, 472 P.2d 646. Judgment vacated where notice requirement not complied with. - Where neither the party against whom a default judgment was being granted nor his attorney were given written notice of an application for the judgment and the court granted an oral motion for default judgment, the judgment must be vacated for failure to comply with Subdivision (b) (see now Paragraph B). In re Daniels Ins. Agency, Inc., 1984-NMSC-116, 102 N.M. 162, 692 P.2d 1311. Notice of requirement not applicable. - Three-day notice requirement has no application where judgment is entered on the merits after due notice. Coastal Plains Oil Co. v. Douglas, 1961-NMSC-110, 69 N.M. 68, 364 P.2d 131. Denial of motion made on day of trial discretionary. - Where the plaintiff had failed to respond to the counterclaim at the time of trial, but the defendants did not comply with this rule, which requires an affidavit, a written application for default, and service upon the defaulting party no less than three days before the hearing, the court properly denied the motion and tried the matter on its merits, when it was confronted with a motion for default on the day of trial. Landavazo v. Sanchez, 1990-NMSC-114, 111 N.M. 137, 802 P.2d 1283. C. DAMAGES. Default not necessarily admission of damages pleaded. - Liability and damages are different and separate concepts. Thus, a default judgment is not necessarily an admission of the amount of damages pleaded by the plaintiff. Armijo v. Armijo, 1982-NMCA-124, 98 N.M. 518, 650 P.2d 40. Default judgment not considered admission of unliquidated damages. - The entry of a default judgment against a defendant is not considered an admission by the defendant of the amount of unliquidated damages claimed by the plaintiff. United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Claims for large sums of money should not be determined by default judgments if they can reasonably be avoided. United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Punitive damage claim is not admitted by default, and neither are punitive damages provided for in Subdivision (b) (see now Paragraph B). Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Hearing is necessary to determine compensatory or punitive damages. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Trial court had authority to enter default judgment only on issue of liability, not on damages; that part of the default judgment on damages should have been set aside before evidence on damages was heard, and failure to do so prejudiced time of defendants' right of appeal on default judgment. Defendants had no duty to reopen the matter or to produce testimony on damage issue, since this burden was on trial court and plaintiff. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Failure to hold hearing on unliquidated damages. - Where the claim for damages is unliquidated, it is an abuse of discretion not to have a hearing and to put the plaintiff to the test of presenting evidence to support his claim for damages. Armijo v. Armijo, 1982-NMCA-124, 98 N.M. 518, 650 P.2d 40. Right to cross-examine and introduce evidence on damage issue. - Upon assessment of damages following entry of default, defaulting defendant has the right to cross-examine plaintiff's witnesses and to introduce affirmative testimony on his own behalf in mitigation of damages. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. IV. SETTING ASIDE DEFAULT. Construction. - This rule provides that, for good cause shown, court may set aside entry of default and, if judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (see now Rule 1-060 NMRA). Weisberg v. Garcia, 1965-NMSC-085, 75 N.M. 367, 404 P.2d 565. Entry of default is procedurally distinct from entry of judgment by default. Entry of default is a formal matter that serves to invite the court's attention to a party's omission to plead or otherwise defend and to the fact that the case is ripe for entry of judgment by default. By its terms, Paragraph (C) of this rule requires requests for relief from entries of default to be considered under a "good cause shown" standard. On the other hand, default judgments are to be deemed final judgments. As final judgments they are subject to the trial court's control for a period of thirty days, pursuant to Section 39-1-1 NMSA 1978. Thereafter, default judgments must be set aside in accordance with Rule 1-060(B) NMRA. DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183. Applicability of Rule 1-060 NMRA. - With the exception of judgments still under the court's control pursuant to 39-1-1 NMSA 1978, judgments by default must be set aside in accordance with Rule 1-060 NMRA. Marinchek v. Paige, 1989-NMSC-019, 108 N.M. 349, 772 P.2d 879. Compliance with rule jurisdictional. - Court acts in excess of its jurisdiction in vacating default judgment without a showing of compliance with this rule and Rule 60(b) (see now Rule 1-060 NMRA). Starnes v. Starnes, 1963-NMSC-081, 72 N.M. 142, 381 P.2d 423. Relief from default before pleading. - Party in default for failure to plead or otherwise defend action must apply to court for relief under this rule before he can plead in the cause. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Motion addressed to court's discretion. - Motion to set aside default judgment was addressed to sound discretion of trial judge, whose ruling would not be reversed except for abuse of discretion. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533; Conejos Cnty. Lumber Co. v. Citizens Sav. & Loan Ass'n, 1969-NMSC-122, 80 N.M. 612, 459 P.2d 138; Dyer v. Pacheco, 1982-NMCA-148, 98 N.M. 670, 651 P.2d 1314. Whether motion to set aside default judgment should be granted rests within sound discretion of trial court. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Decision of trial court as to setting aside default judgment is discretionary and will be reversed only for abuse of that discretion. Otis Eng'r Corp. v. Grace, 1974-NMSC-076, 86 N.M. 727, 527 P.2d 322, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. Motion to set aside default or judgment by default is addressed to discretion of court, and adequate basis must be shown; in exercising this discretion court will be guided by the fact that default judgments are not favored in the law. Wakely v. Tyler, 1967-NMSC-145, 78 N.M. 168, 429 P.2d 366. Motion to set aside or vacate default judgment is addressed to sound discretion of trial court; district court did not abuse its discretion where there was evidence of a meritorious defense and no intervening equities. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Nature of discretion. - Discretion is not the power to act pursuant to one's own judgment without other restraint or control, but is a legal discretion to be exercised in conformity to law; though wide and not lightly to be interfered with, it is not limitless. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. Trial on merits preferred. - It is the policy of the law to prefer that cases be decided on merits, and this policy looks with disfavor upon default judgments and litigant who attempts to take advantage of mistake, surprise, inadvertence or neglect of adversary. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. In exercising discretion to set aside a default judgment, courts should bear in mind that default judgments are not favored, and that generally causes should be tried upon their merits. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. In determining whether to set aside default judgment, courts should bear in mind that default judgments are not favored and that, generally, causes should be tried upon their merits, but should also recognize that rules of procedure are intended to provide orderly procedure and to expedite disposal of causes. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Although the granting of a default judgment lies within the second discretion of the trial judge, defaults are not favored and cases should be decided on their merits. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. A grant of default judgment or of a motion to set aside a default judgment rests within the sound discretion of a trial court; however, because default judgments are generally disfavored, any doubts about whether relief should be granted are resolved in favor of the defaulting defendant and, in the absence of a showing of prejudice to the plaintiff, causes should be tried upon the merits. Gandara v. Gandara, 2003-NMCA-036, 133 N.M. 329, 62 P.3d 1211. Court should be more liberal than under Rule 60(b). - In determining whether the entry of a default should be set aside under Subdivision (c) (see now Paragraph C) of this rule, the trial court should be more liberal than under Rule 60(b) (see now Rule 1-060 NMRA) and resolve all doubts in favor of the party declared to be in default. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. While the strict criteria of Rule 1-060(B) NMRA are used when setting aside an entry of default judgment by a trial court, this rule merely requires the use of a "good cause" standard when setting aside the entry of a default by a district court clerk. Gandara v. Gandara, 2003-NMCA-036, 133 N.M. 329, 62 P.3d 1211. Doubts resolved in movant's favor. - When there are no intervening equities, any doubt should, as a general proposition, be resolved in favor of the movant to the end of securing a trial upon the merits. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. Where timely relief is sought from default judgment and movant has a meritorious defense, doubt, if any, should be resolved in favor of motion to set aside the judgment so that case may be decided on merits. Wakely v. Tyler, 1967-NMSC-145, 78 N.M. 168, 429 P.2d 366. Where there are no intervening equities, any doubt should, as a general proposition, be resolved in favor of the movant, the trial court liberally determining what is a good excuse, to the end of securing trial upon the merits. Weisberg v. Garcia, 1965-NMSC-085, 75 N.M. 367, 404 P.2d 565. Reversal for slight abuse of discretion. - Slight abuse of discretion in refusing to set aside a default judgment will often be sufficient to justify reversal of order. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. Good excuse and meritorious defense. - Court should not reopen default judgment merely because party in default requests it, but should require him to show both that there was good reason for default and that he has a meritorious defense to the action. Wakely v. Tyler, 1967-NMSC-145, 78 N.M. 168, 429 P.2d 366. To have default judgment set aside movant must demonstrate that he has a meritorious defense. Otis Eng'r Corp. v. Grace, 1974-NMSC-076, 86 N.M. 727, 527 P.2d 322. Under Laws 1880, ch. 6, §31 (now repealed), default could be set aside on motion on such terms as court deemed just if reasonable excuse was shown for having made such default, and it was matter largely in discretion of trial court whether excuse presented was reasonable. Lasswell v. Kitt, 1902-NMSC-020, 11 N.M. 459, 70 P. 561. Generally, before the trial court will set aside an entry of default, the defendant must demonstrate both that he had good cause for failing to answer and that he had a meritorious defense. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. "For good cause shown" construed. - The defendant must show "good cause" to be relieved from the onerous burdens and consequences of defaults and default judgments. "For good cause shown" means that the district court must be satisfied that the facts or questions of law involved, or both, make it a part of wisdom to set aside the default judgment. Dyer v. Pacheco, 1982-NMCA-148, 98 N.M. 670, 651 P.2d 1314. Defendant showed good cause for relief from default: (1) there was no evidence that she had intended to delay the suit or that her filing her answer one day late was the result of anything other than human error; (2) her claim she had no notice of any defect in the property (which was supported by a copy of an inspection report) was a meritorious defense to the premises liability suit; and (3) plaintiffs did not argue that any intervening equities weighed against setting aside the default. DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183. Court abuses discretion in not setting aside excusable default where defenses meritorious. - Where an employer involved in a workmen's compensation case presents uncontroverted evidence that its failure to file a timely answer resulted from excusable neglect, mistake and inadvertence, and where it specified meritorious defenses involving statutes of limitation and no accidental injury, the trial court abused its discretion in denying the motion to set aside the default judgment. Lopez v. Sears, Roebuck & Co., 1981-NMCA-058, 96 N.M. 143, 628 P.2d 1139. When tardiness excusable neglect setting aside default. - Out-of-town attorney's 40-minute tardiness in appearing in court as a result of receiving no motel wake-up call constituted excusable neglect. Chase v. Contractors' Equip. & Supply Co., 1983-NMCA-058, 100 N.M. 39, 665 P.2d 301. Lack of jurisdiction. - Argument that defendant could not be excused from proceeding promptly to move to set aside judgment because of asserted negligence of his lawyer in mistakenly informing him of dismissal of case, had no application where court had no jurisdiction because of lack of service. Eaton v. Cooke, 1964-NMSC-137, 74 N.M. 301, 393 P.2d 329. Notice requirements not complied with. - Default judgments entered without the required three-day notice must be set aside. State ex rel. N.M. State Police Dep't v. One 1984 Pontiac 6000, 1990-NMCA-085, 111 N.M. 85, 801 P.2d 667, aff'd, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274. Improper service. - Trial court did not err in vacating default judgment under Rule 60(b) (4) (see now Rule 1-060 NMRA), where motion for default judgment filed by plaintiff was not consistent with return of service and affidavit of deputy sheriff that service of process was made on member of professional corporation, not an officer or as otherwise provided in Rule 4(o) (see now Rule 1-004 NMRA), since court could have found judgment void although it did not make this ruling explicit. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Appearance and answer after learning of default. - Court properly exercised discretion in setting aside default judgment, where 19 days after learning of same, defendant made calls to attorneys, entered an appearance, filed an answer and then moved to set default judgment aside. Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. Discovery of release. - Trial court did not abuse its discretion by setting aside as unjust a deficiency judgment entered after certain mortgaged properties subject to default judgment were sold, when six years after judgment, defendant located letter purporting to be from plaintiff which ostensibly released her from liability for the mortgages on basis of which she had refrained from contesting original foreclosure suit; defendant was permitted to file her answer and proceed to trial. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645. Filing of late answer. - Answer filed by defendant after time therefor had expired was not a nullity, and so long as it remained on file and undisposed of, rendition of default judgment constituted an irregularity for which judgment could be set aside upon motion filed within one year from date of rendition of such judgment. Ortega v. Vigil, 1916-NMSC-039, 22 N.M. 18, 158 P. 487. Failure to attend hearing on motion for default. - Trial court did not abuse its discretion in denying motion to vacate default judgment where defendant inexcusably failed to attend hearing set for considering motion for default, of which he had been notified, even though defendant had relied on previous local custom that entry of appearance followed by late pleading would protect against entry of default judgment. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Defendant not misled. - Judgment of affirmance on default will not be vacated where appellee has not misled appellant or in any way prevented him from obtaining a continuance. Dwyer v. Springfield Fire & Marine Ins. Co., 1927 -NMSC-026, 32 N.M. 250, 255 P. 391. Default judgment reinstated. - Trial court did not abuse its discretion in reinstating default judgment upon defendant's failure to comply with conditions imposed by court in setting aside the default judgment. Kutz v. Independent Publishing Co., 1984-NMCA-081, 101 N.M. 587, 686 P.2d 277. Only "final judgments" intended. - Subdivision (c) (see now Paragraph C), along with Rule 60(b) (see now Rule 1-060 NMRA), deals only with "final judgments." Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. Interlocutory default judgment. - Interlocutory default judgments may be set aside or affirmed in the judicial discretion of the trial court. Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. Failure to prove a meritorious defense did not constitute error upon which to reinstate interlocutory default judgment. Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. Default judgment in action involving multiple parties was an interlocutory and not a final judgment where no determination was made that there was no just reason for delay under Rule 54(b) (see now Rule 1-054 NMRA), and hence fact that trial court did not rule on motion to set aside within 30 days was inconsequential. Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. Where default judgment was only for compensatory damages, and issues of punitive damages and costs were left open or pending, default judgment was interlocutory, and consequently, 30-day limitation of Section 39-1-1 NMSA 1978 was not applicable. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Judgment not by default. - Where defendant had appeared and answered and his counsel had participated fully in trial and other proceedings, although court had refused to grant a week's delay in which to appear and produce evidence, judgment was not by default, and this rule regarding setting aside default judgments had no application. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Failure to appeal denial of motion to vacate. - Where defendants on appeal attacked both entry of default judgment and order denying motions to vacate same, but failed to appeal denial of latter motion, evidence taken at hearings pursuant to that motion had no bearing on validity of the default judgment and would not be noticed, the only issue before the appellate court being whether the default judgment had been properly entered. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Review. - Where plaintiff failed to include facts and testimony in the record to support contention of insufficient evidence to support court's order vacating default judgment, and did not request transcript of proceedings, appellate court would follow rule that upon a doubtful or deficient record, every presumption is indulged in favor of correctness and regularity of decision of trial court. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. V. PARTIES; LIMITATIONS. Amendment of pleadings after default. - Under Rule 54(c) (see now Rule 1-054 NMRA), where an action is commenced and default occurs, and subsequently plaintiff amends his pleadings, no default judgment can be entered unless the defendant is notified of the amended pleading. Richins v. Mayfield, 1973-NMSC-099, 85 N.M. 578, 514 P.2d 854. Limitations of Rule 54(c) (see now Rule 1-054 NMRA) did not apply where trial court in May, 1972, approved stipulation by the terms of which bankrupt codefendant and wife were released from June 1971 default judgment, as said default judgment was not charged in kind or exceeded by trial court's action, plaintiff did not attempt to substantially amend his pleadings and trial court did not grant possession of partnership land to plaintiff since possession had already occurred. Richins v. Mayfield, 1973-NMSC-099, 85 N.M. 578, 514 P.2d 854. Hearing on damages required where the damages claimed are unliquidated. - Although this provision gives the district court discretion to conduct a hearing to determine the amount of damages, where the damages claimed are unliquidated, it would be an abuse of discretion not to have a hearing and to put the plaintiff to the test of presenting evidence to support the claim for damages. Couch v. Williams, 2016-NMCA-014. Where the district court entered a default judgment against defendants as a sanction for discovery abuses pursuant to Rule 1-037(B) NMRA, the default judgment was subject to Rule 1-055 NMRA, and it was an abuse of discretion not to have a hearing and to put the plaintiff to the test of presenting evidence to support the claim for damages when the damages claimed were unliquidated. Couch v. Williams, 2016-NMCA-014. VI. EXCEPTIONS. No showing of service on defendant. - Absent showing of service upon defendant, court was without jurisdiction to enter default judgment against defendant and it was void. Barela v. Lopez, 1966-NMSC-163, 76 N.M. 632, 417 P.2d 441; Eaton v. Cooke, 1964-NMSC-137, 74 N.M. 301, 393 P.2d 329. Service of motorist by publication. - Trial court lacked jurisdiction to enter a default judgment against motorist who had been served solely by order of publication. Chapman v. Farmers Ins. Group, 1976-NMCA-128, 90 N.M. 18, 558 P.2d 1157, cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). Proof of unliquidated damages. - Entry of default judgment against defendant is not considered an admission by defendant of the amount of unliquidated damages claimed by plaintiff, and where damages are unliquidated and uncertain, plaintiff must prove extent of injuries established by default. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Garnishee's debt not unliquidated. - Garnishee's argument that default judgment was void because amount was unliquidated and was granted without proof failed, where amount had been fixed by operation of law when judgment against principal debtor was entered prior to issuance of writ of garnishment. Conejos Cnty. Lumber Co. v. Citizens Sav. & Loan Ass'n, 1969-NMSC-122, 80 N.M. 612, 459 P.2d 138. No evidence on which to base judgment. - Where damages were unliquidated, as affidavit merely set out a general description of various acts allegedly performed by plaintiff, followed by total amount of attorney's fee, together with offsets and credits thereto, and there was no evidence upon which to base default judgment, complaint would be dismissed. Wagner v. Hunton, 1966-NMSC-071, 76 N.M. 194, 413 P.2d 474. Law reviews. - For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). Am. Jur. 2d, A.L.R. and C.J.S. references. - 47 Am. Jur. 2d Judgments §783 et seq. Successful defense by one codefendant, or a finding for "defendants," as inuring to benefit of defaulting defendant, 78 A.L.R. 938. Duty of court upon opening default to defer vacation of judgment or order until result of trial on merits, 98 A.L.R. 1380. Abandonment of or withdrawal from case by attorney as ground for opening or setting aside judgment by default, 114 A.L.R. 279. Actual knowledge of pendency of action, or evasion of personal service, as affecting right to relief from judgment by default on constructive or substituted service of process, 122 A.L.R. 624. Waiver by plaintiff of right to enter default judgment against defendant, or of the default itself after entry, what amounts to, 124 A.L.R. 155. Disobedience of order, summons or of documents, constitutionality, construction and application of statutes or rules of court which permit setting aside of a plea and giving judgment by default, because of, 144 A.L.R. 372. Mistaken belief or contention that defendant had not been served, or had not been legally served, with summons, as ground for setting aside default judgment, 153 A.L.R. 449. Validity, construction and application of statutes providing for entry of default judgment by clerk without intervention of court or judge, 158 A.L.R. 1091. Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496. Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner, 14 A.L.R.2d 580. Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179. Conditioning setting aside of judgment or grant of new trial on payment of opposing attorney's fees, 21 A.L.R.2d 863. Divorce action, power of court, in absence of express authority, to grant relief from judgment by default in, 22 A.L.R.2d 1312. Effect, under Rule 55(b) (2) of the Federal Rules of Civil Procedure and similar state statutes and rules, of failure, prior to taking default judgment against party who has appeared, to serve three-day written notice of application for judgment, 51 A.L.R.2d 837. Necessity of taking proof as to liability against defaulting defendant, 8 A.L.R.3d 1070. Appealability of order setting aside, or refusing to set aside, default judgment, 8 A.L.R.3d 1272. Amount of damages, defaulting defendant's right to notice and hearing as to determination of, 15 A.L.R.3d 586. Attorney's mistake as to time or place of appearance, trial or filing of necessary papers, opening default or default judgment claimed to have been obtained because of, 21 A.L.R.3d 1255. What amounts to "appearance" under statute or rule requiring notice to party who has "appeared," of intention to take default judgment, 73 A.L.R.3d 1250. Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863. Default judgments against the United States under Rule 55(e) of the Federal Rules of Civil Procedure, 55 A.L.R. Fed. 190. 49 C.J.S. Judgments §§ 195 to 233, 235 to 242, 376 to 433.