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Trust Territory Social Security System Board v Kabua [1987] MHSC 15; 1 MILR (Rev) 83 (12 November 1987)

1 MILR (Rev) 83

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 87-04
(High Ct. Civil No. 1987-007)

TRUST TERRITORY SOCIAL SECURITY SYSTEM BOARD,
Plaintiff-Appellee,

-v-

JIBA KABUA,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

NOVEMBER 12, 1987

BURNETT, C.J.
TENNEKONE, A.J., and GUNATILAKA, A.J. (sitting by designation)

SUMMARY:

The Court dismissed an appeal taken only from denial of a motion to set aside a default judgment, it appearing that there was no abuse of discretion by the trial court.

DIGEST:

1. APPEAL AND ERROR – Review – Discretionary Matters – Default Judgments: Whether to grant a motion to set aside a default judgment is within the discretion of the trial court. Abuse of discretion is the standard of review.

OPINION OF THE COURT BY BURNETT, C.J.

This action was brought by the Trust Territory Social Security System Board (Appellee) against Appellant Jiba Kabua and three others, doing business as J & P Construction Co., to recover unpaid social security taxes, interest and costs.

Summons and complaint was served on January 10, 1987. Motion for Default was filed March 27, and default judgment entered March 30, 1987. Of the four named defendants, only Kabua has appealed, after moving to set aside the judgment.

Notice of Appeal, timely filed, was taken from denial of defense motion to set aside the default judgment, and "on the underlying judgment entered ...."

The statement of questions presented raises only whether the trial court erred and "allow an injustice in denying Defendant's motion to set aside Default Judgment given Defendant's unfamiliarity with legal procedures ...."

The judgment was, clearly, properly entered, given the seventy six (76) days which intervened between service of process and the motion for default judgment.

[1] Appeal is taken only from the refusal to set aside default judgment which, counsel concedes, was proper. Nothing appears, or is asserted by counsel, to show an abuse of discretion by the trial court in denying the motion to set aside. 11 C. Wright and A. Miller, Federal Practice & Procedure, § 2693.

As Appellee notes, p. 9 Appellee brief, we have previously declined to consider issues not set forth in the notice of appeal. Lokkon v. Nakap, 1 MILR (Rev.) 69, 70 (Feb 5, 1987).

While refusing to give credence to issues not raised by the notice, I must make mention of counsel's briefed assertion (repeated on oral argument) that "Defendant's reasons for not answering ..." should be "good cause" in the Marshalls, where "the Court System has been largely ignored until recently ...."

For the, nearly, twenty years that I have been associated with the system in the Marshalls, Trial Assistant and Pro-se defendants have had no difficulty in understanding the Rules, and have, for the most part, answered on time. To allow the exception here urged by Appellant would mean that we have no rule at all. This cannot be.

While unable to grant his wishes, I must say that I, and the whole court, are most appreciative of the good efforts and the candor of Appellant's counsel.

The decision of the trial court must be, however, Affirmed.