ORCP 69

 

      See also annotations under ORS 18.080 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 18.080)

 

      Default judgment could not be entered against four nonappearing defendants who occupied exactly same legal position as two successfully demurring defendants. State ex rel Everett v. Sanders, 274 Or 75, 544 P2d 1043 (1976)

 

In general

 

      This rule requires 10-day notice for application for judgment by default, not for order of entry of default. Denkers v. Durham Leasing Co., 299 Or 544, 704 P2d 114 (1985)

 

      Words “failed to...otherwise defend” do not apply to failure by party to appear at trial, so order entered by court was not order of default. Weaver and Weaver, 119 Or App 478, 851 P2d 629 (1993)

 

ORCP 69A

 

NOTES OF DECISIONS

 

      Appearance must include responsive pleading in order to preclude entry of default judgment. Gibbons and Gibbons, 153 Or App 377, 956 P2d 1069 (1998), on reconsideration 155 Or App 262, 964 P2d 1050 (1998)

 

ORCP 69B

 

NOTES OF DECISIONS

 

      Where notice of intent to apply for default judgment was served on adverse party only seven days before hearing on application, and court did not shorten ten-day notice period of this rule, court erred in granting default judgment. Denkers v. Durham Leasing Co., 72 Or App 180, 694 P2d 996 (1985)

 

      In dissolution of marriage case where husband who had entered general appearance did not personally appear at time of hearing, and wife, instead of proceeding to trial on that day without husband’s presence, submitted motion for decree without hearing under ORS 107.095 (4), it was error to grant judgment by default, because husband did not receive notice of application for default judgment as required by this rule. McCumber and McCumber, 72 Or App 529, 695 P2d 992 (1985)

 

      Motion for supplemental proceedings to dissolve marriage pursuant to ORS 107.465 is part of same “action” as original decree of unlimited separation and, therefore, party is entitled to notice of other party’s intent to apply for default judgment. Wagner and Wagner, 89 Or App 102, 747 P2d 400 (1987)

 

      Entry of default and entry of judgment by default are different things and judgment was void where defendant was not served with 10-day notice pursuant to this Rule, but order of default was valid. B & R Equipment Sales v. Commons, 92 Or App 18, 756 P2d 1272 (1988)

 

      Trial court correctly entered judgment in defaulting party’s favor because co-defendant appeared and prevailed on merits, and defendants occupied same legal position. Brooks v. Ballew, 95 Or App 381, 768 P2d 941 (1989)