Duvall v. McLeod, 331 Or. 675

Summary

The Oregon Supreme Court held that ORCP 71 B(1) requires a party seeking relief from a default judgment to tender a responsive pleading or ORCP 21 A motion simultaneously with the motion for relief. The court concluded that ORCP 15 D did not authorize the trial court to accept the responsive pleading later, reversed the Court of Appeals, vacated the circuit court judgment, and remanded with instructions to reinstate the default judgment.

Holdings

1. ORCP 71 B(1) requires a party seeking relief from a default judgment to tender the motion for relief and the required responsive pleading or ORCP 21 A motion to dismiss simultaneously when the motion for relief is filed.
2. ORCP 15 D did not authorize the trial court to accept McLeod's late answer before setting aside the default judgment or to waive ORCP 71 B(1)'s simultaneous-tender requirement.

Questions Presented

1. Whether ORCP 71 B(1)'s requirement that a motion for relief from a default judgment be accompanied by a pleading or motion to dismiss requires simultaneous tender of that pleading or motion when the motion for relief is filed.
2. Whether ORCP 15 D authorized the trial court to accept a responsive pleading after the motion for relief from the default judgment had been filed.

Disposition

reversed_and_remanded