FAHY, Circuit Judge.
The question is whether a default judgment should have been set aside by the District Court. Eastern Air Lines, Inc., sued Erick Rios Bridoux, a national of Bolivia, for property damages due to a mid-air collision near or over the Washington National Airport. Bridoux was pilot of a P-38 airplane which collided in flight with an airliner of the plaintiff. The lives of all Eastern's passengers and crew were lost. Bridoux alone survived.
On May 1, 1950, Bridoux, through attorneys, filed an answer to the complaint, and a counter-claim for injuries to himself. On December 1, 1950, his attorneys
It seems clear that Bridoux never received actual notice of the withdrawal of his counsel or of any proceedings leading to the default judgment until after it had been entered.
We assume that entry of the default and judgment were justified when made, as the situation then appeared. The question is whether the facts as they subsequently became known warranted relief.
Rule 60(b), Fed.R.Civ.Proc., 28 U.S.C.A., provides that on motion filed within a reasonable time, and upon such terms as are just, the court may relieve a party from a final judgment for any reason justifying such relief. This rule is expressly made applicable to a default judgment by Rule 55(c). See, also, 3-A Ohlinger's Fed.Prac., p. 446. The motions were filed within six months of the judgment. This was within a reasonable time, especially in view of the provision in Rule 60(b) that a motion grounded upon mistake, inadvertence, surprise or excusable neglect, may be filed within one year. Moreover this judgment is for money only and no intervening rights appear to have been adversely affected by passage of the time between the judgment and the motions.
Considering the motions timely, we inquire whether justifiable reason is shown for relief.
What ruling should apply to this situation? It has long been held in
Manos v. Fickenscher, Mun.App.D.C., 62 A.2d 791, 793. See, also, Tozer v. Charles A. Krause Milling Co., supra, 189 F.2d at page 245; 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Ed., § 1323.
Since no intervening rights appear to have been prejudiced, since a good faith defense on the merits had been put forward by answer, since no lack of good faith appears in any other respect, and because the facts of the case indicate no significant reason for precluding a trial on the merits, we think it was improvident not to grant any relief whatever from this very large money judgment entered by default. This is especially so when the provision of Rule 60(b), that relief may be granted upon just terms, is considered. Just terms are available here in connection with Bridoux's counter-claim. Litigation over it is more directly attributable to him than the claim initiated against him by Eastern. His lack of diligence in respect to his counter-claim might appropriately be made to bear some of the consequences of his default. And of course he should have exercised greater care to keep parties and counsel advised of his address.
We conclude that Bridoux should be relieved of the default judgment, with Eastern's complaint reinstated for trial on the merits, but we affirm the dismissal of Bridoux's counter-claim. We do the latter as approval of the District Court's exercise of discretion in refusing to vacate its dismissal. The same result could be obtained by directing that such dismissal shall stand as a just term accompanying the relief granted from the money judgment.
Reversed in part, affirmed in part.