One co-defendents moved far away. Win if no-show at trial?

[Dasher]

There are two defendents, one for sure will not be able to make it to court on the trial date. During a motion hearing, the other co-defendent said he will not be joining us. The judge said "he better be there [in court on the trial day]" as if it was an ominous warning of dire consequences if he wasn't. Does that mean plaintiff wins by default if one of the co-defendents don't show up (but the other does)?

Thanks.

[dcatz]

Depends. Not enough informaton in the post to say. Did you sue them "individually, jointly and severally? Are the allegations against both essentially the same and would one be able to rebut liability for both? Without knowing anything about the claim, it would only be speculation.
Small Claims is generally informal, and a judge will usually allow a spouse to represent the other spouse, when both are named defendants. The same could be true of a partnership. The only thing to say with reasonable certainty is that, if the allegations against each differed so markedly that the appearing defendant would be legally incapable of defending the the non-appearing defendant, the latter will suffer a default.

[dcatz]

Something about this post bothered me, and I realized that it was a reference to a "motion hearing" and then realized that you didn't include the name of your state.

The majority of states are informal enough about Small Claims rules that there wouldn't be a pre-trial motion hearing. A small minority permit attorneys and even trial by jury upon request. Are you in the right forum? If not, substantial change to the original response may be warranted.

[Dasher]

dcatz, If it is of any relevance in this matter, Michigan is the state but I leave location open because there are so many legal experts in California and New York who are knowledgeble about general, non-locale specific matters. Both defendents were served with the same claim. It is therefore joint/several. They lived within easy reach at the time of the claim. The motion was called on by one of the defendents (the one who didn't move) to ask if they could have the default judgement to be set aside (neither filed a defense within the time limit). They got it. The judge said both of them better show up.

[seniorjudge]

Help us out here.

Are you saying you got a default judgment against two defendants?

Are you further saying that they (neither one) appealed the judgment?

Are you also saying that both of them filed a motion to set aside the judgment?

And then are you finally saying that the default judgment was set aside and now you will have another trial?




I also am curious as to how you will collect this judgment.

[dcatz]

There is bold printing at the top of the page that requires the state be identified.
It is relevant because, while there may be common elements and uniform laws, the majority of any state’s law is not “general, non-locale specific”. Louisiana’s legal system is based on civil law derived from French and Spanish codes, as opposed to English Common Law – not that “general, non-locale specific”.
SJ’s questions are relevant and confirm the need for clarity and specificity.
And I still don’t know if this transpired in Small Claims or in a higher forum but, the more information that you provide, the more I’m convinced it was not Small Claims, ‘tho you still haven’t answered.
If you’re satisfied with guesses and speculation, we’re there.

[Dasher]

seniorjudge,

The matter about default judgement is a bit off original topic but if it's of any relevance, here are the answers.

>Are you saying you got a default judgment against two defendants?

Yes.

>Are you further saying that they (neither one) appealed the judgment?

They did so by filing a motion after I started the garnishment process.

>Are you also saying that both of them filed a motion to set aside the judgment?

After they found out I could go after their wage (at least one of their's anyways), an agent acting on behalf of both did filed a motion the court office. At the time, one of them was travelling, the other was working out of town. Hence the agent. That was not the case when the claim was served to the defendants at their residence.

On the day of the motion hearing, only one of the actual defendants showed up, claimed they were unable to file a defense because they were either travelling or working out of town. The judge approved the motion. I tried to say that in both case, they could have used agents (family members) who were knowledgeable of the case and who expressed to me that they were quite willing and capable to act on behalf of the defendants. The judge was unreceptive. Sensing the judge's mindset, I did not further point out how dubious is that explaination of being out of town. For example, one could have filed a defense before leaving on vacation. The other started to work out of town after the claim was served. And even if he started work soon after being served with the claim, he was working in a city only about 40 miles away, could easily commuted back home on weekends and kept in touch with the household on weekdays by phone/email thus fully aware of the paperwork that was going back and forth. I might bring this up at the trial to have the set aside overturned as the first line of strategy.

>And then are you finally saying that the default judgment was set aside and now you will have another trial?

The path towards a trial has been started because of the set aside.

>I also am curious as to how you will collect this judgment.

I knew where one of them worked. So I filed for garnishment. It was going to work. That's when they 'woke up' and filed the motion to set aside the default judgement. Since this is jointly/severally, the garnishment of one will work again unless he changes his job.