9 FSM Intrm.500-501

CHUUK STATE SUPREME COURT

TRIAL DIVISION

Cited as Simina v, Rayphand ,

9 FSM Intrm. 500 (Chuuk S. Ct. Tr. 1999)

[9 FSM Intrm. 500]

REIKO SIMINA,

Plaintiff,

vs.

SELY RAYPHAND and PEKO MUALIA,

Defendants.

CSSC CA NO. 47-99

ORDER TO SET ASIDE DEFAULT JUDGMENT

Soukichi Fritz

Chief Justice

Decided: October 20, 1999

APPEARANCES:

For the Plaintiff: Hans Wiliander, trial counselor

P.O. Box 389

Weno, Chuuk FM 96942

For the Defendant: Ermino Fritz, trial counselor

P.O. Box 604

Weno, Chuuk FM 96942

* * * *

HEADNOTE

Civil Procedure ) Service; Judgments ) Default Judgments; Judgments ) Relief from Judgment

A default judgment will be set aside when one defendant was served the complaint and summons not by a policeman or some other specially appointed person in compliance with Civil

[9 FSM Intrm. 501]

Procedure Rule 4(c) but by plaintiff's counsel and the other defendant was not served at all. Simina v. Rayphand, 9 FSM Intrm. 500, 501 (Chk. S. Ct. Tr. 1999).

* * * *

COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

This case comes before the Court on Defendant's Motion to set aside the Default Judgment entered by the Court on August 11, 1999. The primary basis for the Defendant's motion is that the service of process did not comply with Rule 4, CSSC Rules of Civil Procedure and is therefore defective.

Rule 4(c) provides in part that "Service of process shall be made by a policeman or by some person specially appointed by the court for that purpose . . . ." "The word `process,' as now commonly understood, refers to a summons, or, summons and complaint . . . ." Black's Law Dictionary 1085 (5th ed. 1979).

On further review, the Court finds that there is nothing in the record to indicate that service of the Summons and Complaint in the case was had as required by Rule 4(c). To the contrary, representations made by Counsel for the Plaintiff, indicate the he, himself, conducted service, but only on one Defendant.

The Court sees the provisions of Rule 4(c) as compulsory and having been promulgated to avoid confusion and conflicts such as those that have occurred in this case. Strict compliance with Rule 4, would have avoided all of these issues.

Based on the foregoing, the Defendant's Motion to Set Aside the Default Judgment entered on August 11, 1999, is due to be granted, and it is so ordered.


	CHUUK STATE SUPREME COURT TRIAL DIVISION Cited as Simina v, Rayphand , 9 FSM Intrm. 500 (Chuuk S. Ct. Tr. 1999) [9 FSM Intrm. 500] REIKO SIMINA, Plaintiff, vs. SELY RAYPHAND and PEKO MUALIA, Defendants. CSSC CA NO. 47-99 ORDER TO SET ASIDE DEFAULT JUDGMENT Soukichi Fritz Chief Justice Decided: October 20, 1999 APPEARANCES: For the Plaintiff: Hans Wiliander, trial counselor P.O. Box 389 Weno, Chuuk FM 96942 For the Defendant: Ermino Fritz, trial counselor P.O. Box 604 Weno, Chuuk FM 96942 * * * * HEADNOTE Civil Procedure ) Service; Judgments ) Default Judgments; Judgments ) Relief from Judgment A default judgment will be set aside when one defendant was served the complaint and summons not by a policeman or some other specially appointed person in compliance with Civil [9 FSM Intrm. 501] Procedure Rule 4(c) but by plaintiff's counsel and the other defendant was not served at all. Simina v. Rayphand, 9 FSM Intrm. 500, 501 (Chk. S. Ct. Tr. 1999). * * * * COURT'S OPINION SOUKICHI FRITZ, Chief Justice: This case comes before the Court on Defendant's Motion to set aside the Default Judgment entered by the Court on August 11, 1999. The primary basis for the Defendant's motion is that the service of process did not comply with Rule 4, CSSC Rules of Civil Procedure and is therefore defective. Rule 4(c) provides in part that "Service of process shall be made by a policeman or by some person specially appointed by the court for that purpose . . . ." "The word `process,' as now commonly understood, refers to a summons, or, summons and complaint . . . ." Black's Law Dictionary 1085 (5th ed. 1979). On further review, the Court finds that there is nothing in the record to indicate that service of the Summons and Complaint in the case was had as required by Rule 4(c). To the contrary, representations made by Counsel for the Plaintiff, indicate the he, himself, conducted service, but only on one Defendant. The Court sees the provisions of Rule 4(c) as compulsory and having been promulgated to avoid confusion and conflicts such as those that have occurred in this case. Strict compliance with Rule 4, would have avoided all of these issues. Based on the foregoing, the Defendant's Motion to Set Aside the Default Judgment entered on August 11, 1999, is due to be granted, and it is so ordered.