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PERKS v. WEST

May 17, 1949

PERKS et ux.
v.
WEST



The opinion of the court was delivered by: GOURLEY

This is an action of trespass brought by Max J. Perks and Irene Perks, his wife, plaintiffs, against William W. West, doing business as West Local & Long Distance Hauling, defendant.

Jurisdiction of the Court arises by virtue of the diversity of citizenship between the parties. No appearance has been entered by the defendant nor has the defendant appeared personally in his own behalf. No demand has been made for jury trial by either of the plaintiffs. The question now before the Court relates to the application of the plaintiffs for the entry of judgment by default filed under provisions of Rule 55(b)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

 Rule 55(b)(2) provides, inter alia, where a party against whom judgment by default is sought has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure, the party entitled to judgment by default shall apply to the court therefor. If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of the matter, the court may conduct such hearing as it deems necessary and proper.

 Rule 8(d) of the Federal Rules of Civil Procedure provides, inter alia, that averments in a pleading to which a responsive pleading is required, other than those as to amount of damages, are admitted when not denied in the responsive pleading.

 Service of the summons and complaint together with notice of the hearing on application for the determination of damages and entry of default judgment has been duly given in accordance with law and the Federal Rules of Civil Procedure.

 Findings of Fact.

 1. The plaintiffs, Max J. Perks and Irene Perks, are husband and wife and reside at 313 Coal Street, Osceola Mills, Clearfield County, Pennsylvania.

 2. The defendant, William W. West, is a resident of 924 West Franklin Street, Baltimore, Maryland, and for the period of time covered by these pleadings was in the business of intra and inter-state hauling, doing business as the West Local & Long Distance Hauling of Baltimore, Maryland.

 3. That on November 1, 1946, the defendant, William W. West, did own and possess a diamond T.K. Truck and on said date the said truck was driven by and was in possession and control of the defendant, William W. West.

 4. On or about November 1, 1946, at about 2:00 o'clock A.M., defendant stopped said truck and parked the same in Chester Hill Borough on the main highway Route No. 53 between Phillipsburg and Osceola Mills, Pennsylvania. Said truck was parked heading west on the northern side of said highway, which highway at that point runs in a generally easterly and westerly direction and said truck was so stopped and parked with all four wheels on said highway.

 5. On or about November 1, 1946, at about 2:00 o'clock A.M., the plaintiff, Max J. Perks, was the owner of a Ford pickup truck and at such time was lawfully operating said Ford truck with the plaintiff Irene Perks as a lawful guest, in a generally westerly direction, through the Borough of Chester Hill on main highway Route No. 53 toward Osceola Mills.

 6. That at approximately 2:00 A.M., on such date the truck of plaintiff Max J. Perks, without fault on the part of said plaintiff, collided with the rear of defendant's illegally parked truck, said collision ...


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