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Vance Intl. v. Penn,

VANCE INTERNATIONAL, INC., Plaintiff

v.

IOELU PENN, dba JOHN'S GENERAL CONSTRUCTION and
J.G.C. LUMBER AND HARDWARE, Defendant

High Court of American Samoa
Trial Division

CA No. 145-94

January 3, 1995

__________

[1] Even though defendant failed to serve copy of answer on the plaintiff, court cannot grant a default judgment in favor of plaintiff in the face of an answer effectively denying liability.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, William H. Reardon
For Defendant, Togiola T.A. Tulafono

Order Denying Motion for Default Judgment:

Plaintiff's motion for a default judgment came regularly for hearing on December 28, 1994. Counsel for both parties were present.

Plaintiff commenced this action on August 5, 1994. Defendant was served with process on August 9, 1994, and filed an answer on August 11, 1994. However, defendant failed to provide plaintiff's counsel with a copy of the [27ASR2d80] answer. Thus, on November 17, 1994, plaintiff initiated default proceedings and, by oversight of the answer on file, obtained the clerk's entry of defendant's default. On the same day, the clerk issued the notice of the hearing on this motion, which was served on defendant on December 1, 1994.

[1] While we express disappointment with defendant's counsel when he neglected to ensure compliance with service procedures at the time of filing the answer, and perhaps even more so when counsel learned of this correctable mistake, we cannot grant a default judgment in the face of an answer effectively denying liability. As provided in T.C.R.C.P. 55(c), defendant would be properly entitled to relief by setting aside any such judgment by a motion under T.C.R.C.P. 60(b).

Accordingly, the motion for a default judgment is denied.

It is so ordered.

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