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Default Judgment Set Aside, Interlocutory Order of Default

A default judgment is where a plaintiff is automatically given the relief requested when a defendant fails to respond/answer in a timely manner. There are two types of default in Missouri: (1) an interlocutory order of default and a (2) default judgment. With an interlocutory order of default, there is a finding of liability, but not damages. The assessment of damages comes at a later date after the plaintiff presents evidence as to damages. An interlocutory order of default is often requested when there are multiple defendants and only one of them is in default. A default judgment, on the other hand, assesses both liability and damages.

After a default judgment is entered, is it the end of the road for the defendant? Not necessarily. The defendant may file a motion to set aside a default judgment. Such a motion is within the discretion of the trial court, but the trial court has broader discretion to grant a motion to set aside than it does to deny it. In order to set aside, a party must file an independent motion which asserts sufficient facts which constitutes both a meritorious defense and good cause for default. The Motion must be made within a reasonable time not to exceed one (1) year. Missouri Supreme Court rule further states that “good cause” includes a mistake that is not intentionally¬†or recklessly designed to impede the judicial process.

While experience suggests that motions to set aside a default are liberally granted, the Court does have discretion to grant reasonable attorney fees and costs to the party who requested and received the default.

Contact us with questions.