September 23, 1966
IDA MAE LUNDERVILLE, PLAINTIFF-APPELLEE,
JAMES K. ALLEN, DEFENDANT-APPELLANT.
Before WATERMAN, MOORE and ANDERSON, Circuit Judges.
A motion for judgment by default alleging failure of defendant-appellant timely to answer plaintiff's complaint was granted in the court below. Defendant-appellant on appeal maintains that, too hastily under the circumstances of this particular case, he has been deprived of his day in court and has been inequitably prevented from defending upon the merits.
It indeed appears that the court below has a heavy docket and that it must of necessity and as a general rule, in that busy court, dispose of cases with dispatch where issue is not timely joined. Nevertheless, in order to prevent a possible miscarriage of justice, in this particular case it is desirable to afford appellant an opportunity to defend plaintiff's complaint upon the merits.
The judgment for plaintiff is ordered vacated and the cause is remanded for further proceedings below.
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