# State Ex Rel. Nilsen v. Cushing

> Oregon Supreme Court · April 30, 1969 · 253 Or. 262

URL: https://www.frixlaw.com/law-library/cases/9568860

## Case

- **Full name:** STATE Ex Rel NILSEN, Appellant, v. CUSHING Et Al, Respondents
- **Court:** Oregon Supreme Court
- **Decided:** April 30, 1969
- **Citations:** 253 Or. 262; 453 P.2d 945; 1969 Ore. LEXIS 449
- **Precedential status:** Published
- **Opinion:** Concurrence by Hammond
- **Judges:** Good-Win, Perry, McAllister, Goodwin, Holman, Hammond
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9568860

## Opinion text

HAMMOND, J.
(Pro Tempore) dissenting.
The question here is not whether plaintiff would be entitled to the judgment prayed for after presentation of evidence in support of the complaint. Neither are we concerned with the right of plaintiff to the entry of an order of default upon failure of the defendants Gray to make an appearance within the prescribed statutory period following service of summons and complaint upon them.
*271 - The sole matter for consideration is whether a trial judge has inherent discretionary authority to require proof by a prima facie hearing of facts which tend to support a claim presented to him when the claim raises either factual or legal problems that suggest the need for closer scrutiny than is afforded by the blind acceptance of a plaintiff’s demand for judgment based upon the allegations of a complaint.
"While a trial judge is unequivocally bound to follow the law that applies-to a particular factual situation, he is not bound to be insensible to a normal human reaction that a judgment for $513.10 plus interest which stems from 14 hours of baby-sitting bears the possibility of creating a great miscarriage of justice. In my opinion, the trial judge has not only the discretionary authority to make such an examination of the problem presented to him, he has a profound duty to do so.
Plaintiff’s assignor by her complaint simply alleges that she performed 14 hours of child care work at the rate of $1.50 per hour during October 7 and 8, 1966. Plaintiff’s calculation of penalty is based upon the performance of seven hours’ work on each date, but the complaint does not so state.
I find no precedent that indicates any arbitrary conduct or breach of duty in the communication of the district judge to plaintiff which stated:
tit¥ $
“Dear Sir :
“In view of your request for judgment, I feel that in this case the Court should probably require some testimony on it which substantiates the plaintiff’s claims. I am therefore setting it for Nov. 16, 1967, at the hour of 10:00 A.M., at which time *272 plaintiff may call witnesses to establish the allegations of the complaint.”
Plaintiff refused to appear and commenced this mandamus proceeding.
There is a wise and often-repeated precept of the law that “Default judgments are not favored in the law, and the trial court has the power in its discretion to set aside default judgments either during the term in which the judgment is rendered or thereafter.” 6 Okla L Rev 257, 265 (1953). Also in this vein see ORS 18.160 and Schrader v. Schrader, 242 Or 526 , 410 P2d 1017 (1966). In spite of this legal philosophy, the majority hold that in granting the default judgment the trial judge has no discretion. I disagree. I would affirm the order of the trial court and dismiss the alternative writ of mandamus.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9568860. Public record. Not legal advice.