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eBook details

• Title: Levine v. Shackelford
• Author : Wisconsin Court of Appeals
• Release Date : January 11, 2008
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 54 KB

Description

In this case, we consider whether the court of appeals applied the correct standard in affirming a trial courts denial of a motion to set aside a default judgment. A three-part test determines whether a court should grant a motion for new trial to set aside a proper default judgment. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The first part of the Craddock test requires that "the failure of the defendant to answer before judgment [i]s not intentional, or the result of conscious indifference on his part, but [i]s due to a mistake or an accident." Id. When applying this part of the Craddock test, the court of appeals defined "conscious indifference" in terms of "a person of reasonable sensibilities under the same or similar circumstances." ___ S.W.3d ___, ___ (Tex. App.-Dallas 2006, pet. denied) (citing Young v. Kirsch, 814 S.W.2d 77, 81 (Tex. App.-San Antonio 1991, no writ) (en banc)). The court of appeals held that the trial court did not abuse its discretion in denying the motion for new trial, and affirmed the trial courts denial. Id. at ___. Though the court of appeals articulated the "conscious indifference" requirement of the Craddock test incorrectly, it properly applied the test. We denied the petition for review, and now deny the motion for rehearing, but we write here to clarify the standard that the court of appeals used.

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