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If I was more competent, I'd be able to explain my argument without
refering to hypothetical scenarios. To date I've failed. Try this:-
Happy-holiday-providers is offering a deal where any person who is
in a family of at least 3 clients may join free of charge if he/she is
below age X.
A week after the holiday the victim receives a demand which is
wrongly based on the false assumption that the person failed the
discount qualifying criterium - below age X.
In fact the client qualified for the discount criterium before the start
of the holiday until after the receipt of the demand letter.
However, by the time the summons was issued [to appear in court]
for the disputed extra charge, the person was 'over age X'.
Q1. would the client have a 'valid' defence ?
Q2. How would you expect the costs of the case to be allocated ?
Now modify the scenario:
the client didn't receive the summons [for one of a thousand justified
reasons - that's why we have facilities to rescind default judgments]
and accordingly a default judgement was granted against the client.
A guaranteed argument to refuse a rescission of the default judgment
[i.e. an opportunity to be heard, when the hearing was missed by no
fault of the client's] is that the defendant admits that the discount
criterium was not satisfied *at the critical time*. I.e the defendant
admits having no defense.
So at the application for a rescission the 'legal boy' asks the holidayer
"is your age below or above X ? ".
And since the age is above X, the discount criterium fails and the
application for rescission is denied.
<BTW I feel embarrased to give such kindergaten scenarios, but
previous more abstract argument have failed>
Q3. was the refusal for rescission 'correct' ?
In the argument for appeal the defendant points out that events [the
becoming 'over age'] after the default judgement canNOT 'justify' the
default judgment -- since cause cannot come AFTER effect.
For the appeal argument happy-holiday's council refines the reasoning
to: "evidence shows that defendant admits being 'too old' when the
'action was started': the date of issue of summons'. And the rest of the
legal profession points out that 'even if the defendant qualified during
the holiday', and at the date of the demand "because the law allows
adjusting/amending a summons,
[and even though the summons was NOT ammended]
the defense criteria fails at the 'commencement of action date' ".
Q4. Is this how legal logic works ?
Thanks for any answers, possibly also posted to:
easlab AT absamail . co . za
== Chris Glur.
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n 17 Sep 2004, not@top-post.texas.net wrote:
If I was more competent, I'd be able to explain
my argument without refering to hypothetical
scenarios. To date I've failed. Try this:-
Happy-holiday-providers is offering a deal where
any person . . . may join free of charge if he/she
is below age X. * * * [An applicant who]
qualified for the discount criterium before the
start of the holiday [and who otherwise applied
on time [as/when prescribed by the offer received
a demand for payment of the fee applicable to
those who did not qualify for the discount] which
was wrongly based on the false assumption that
the [applicant had failed to meet the] below age
X . . . qualifying criterium. However, by the time
the summons was issued [in a lawsuit] for the
disputed . . . charge, [he] . . . was 'over age X'.
[Does that person have] a 'valid' defence ?
Yes, if defendant appears in the lawsuit in timely and whatever is the
otherwise law-required fashion in the jurisdiction/court and then in
also timely fashion in accordance with whatever may be the applicable
pleading rules alleges and then proves the factual correctness of what
(in necessarily translated form because your original posting is at
best very confusedly stated) you (apparently attempt to) say above.
If the defendant defaulted in timely appearing and defending (as you
did in the real-life lawsuit to which you here obliquely refer), what
you say above would not be relevant (much less a "'valid' defence")
unless/until, also if, but only if, in accordance with whatever are
the jursdicition/court-specific standards therefor, s/he had obtained
the other party's stipulation with the court's approval if needed
vactaing that default or, absent such a stipulation, s/he moved vacate
that default and demonstrated, in addition to to the facts you appear
to be trying to postulate above, either that the default was
excusable or that there was some other ground to set aside the
judgment (e.g., that the summons was not served as required by law).
Whether there would be a "'valid' defence" even if the defendant did
not default in timely appearing/answering, if defendant expressed that
would-be defence in the form in which you attempted to express it in
the unedited version of your present posting is (at best) problematic
because you expressed your hypothesized facts in barely coherent form.
How would you expect the costs of the
case to be allocated ?
This is a jursdiction-specific question. Probably, some combination
of legislation or court rules would prescribe what sorts of
defendant's litigation-related out-of-pocket disbursements and other
costs (in some places, referred to as "statutory costs") or related
relief (e.g., in some but hardly all places, perhaps including
reimbursement for the prevailing party's reasonably incurred attorneys
fees) shall or, as a matter of judicial discretion, may be awarded a
prevailing party; but the specifics depend on the answer to the
"Where?" question for the lawsuit of interest (including in what court
it was brought/prosecuted because these standards might apply
differently in different courts even in the same jursidiction).
Now modify the scenario:
[defendant] didn't receive the summons [for one of
a thousand justified reasons - that's why we have
facilities to rescind default judgments] and accordingly
a default judgement was granted against the client.
If by "one of a thousand justified reasons" you mean to suggest that
you hypothesize that, despite the non-receipt of the summons, the
defendant has a right to be granted a recission of the judgment to
which you refer (because defendant's default was "justified" in the
sense that defendant has a right to be relieved of that default),
then, even if it is in some sense your "right" to so theorize, is
either an emptily tautogogical or potentially very misleading way to
postulate the facts (albeit you are not here just posting "facts" but
also the underlying issue of law whether the default was "justified").
The tautology of course is that if the defendant has a right to a
vacatur of the default judgment then the defendant has a right to a
vacatur of the default judgment.
But the misleading and, as applied to you, also self-prejudicial
element remains that (absent plaintiff's consent if need be in the
particular court with the court's approval) whether a default is
"justified" in a manner to entitle the defendant to have a default
judgment set aside is of course and issue that needs to be decided by
a court and, accordingly (if the court is law-punctilious), whether
the court will grant such relief will in turn depend on whether the
defendant in default has in timely and otherwise law-required fashion
established the very right you apparently here (circularly) presume.
A guaranteed argument to refuse a rescission of the
default judgment . . . is that the defendant admits
that the discount criterium was not satisfied *at the
critical time*. I.e the defendant admits having no defense.
Except that there possibly may be qualifications even to this also
essentially tautological statement in certain kinds of cases (not
relevant to discuss here), this is of course (if also truistically)
basically correct.
[ [By the above ". . ." I mean to suggest that] the
hearing was missed by no fault of the [defendant's]]
Here again you confuse yourself by apparently presuming that it is the
defendant who gets to decide whether "the hearing was missed by no
fault" on defendant's part, although this, too, is an issue which in a
disputed case the court will decide in light of whether the motion to
set aside the default was timely made and also complies in all other
respects with the jursidction's law-required standards warranting such
relief.
So at the [hearing of the] application for a rescission
[of the judgment, plaintiff's lawyer] asks the holidayer
"is your age below or above X ? ". And since the age is
above X, the discount criterium fails and the application
for rescission is denied.
Except that if defendant had (A) made his motion in timely fashion
and, in so doing, (B) established either (i) that there was a right to
a vacatur of the judgment independent of the merits (e.g., because,
even if the summons was "received" by some informal method, it was not
"served" in the manner prescribed by law suffient to confer the
court's "jursidiction" over defendant) or (as you seem to be trying to
put it above) both (ii) that the default in answering was "justified"
and also that defendant had applied for the discount in accordance
with the terms of the offer including that he was of the discount
qualifying age when he applied, recission of the judgment ought not be
denied.
<BTW I feel embarrased to give such kindergaten
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