If the defendant fails to appear at the calling of the list, the court should issue a default against the non-appearing defendant and should routinely order judgment and a payment order for the plaintiff. A separate military affidavit is necessary only if the appropriate box has not been completed on the statement of small claim.
Commentary
If the defendant has defaulted by not appearing at the call of the list and the plaintiff is present, the court should routinely enter judgment for the plaintiff. Uniform Small Claims Rule 7(c),(f), and (g) contemplates a largely automatic process and does not require that the court hear a prima facie case. It is advisable, however, for the court to briefly review the claim, and, if necessary, to conduct a hearing in cases where the damages are uncertain or the claim itself appears to be totally without merit or beyond the jurisdiction of the court. Courts should analyze the amount of damages sought in order to make sure that the plaintiff’s loss is not overstated. Examples of situations where reductions would be appropriate include: unprovable damages; instances of partial payment or partial performance; inflated claims; depreciated value; lower actual cost to the plaintiff; uncertain estimates; and instances where collection expenses or interest or other costs (e.g., lost wages for attending court) have been improperly included.
Once the amount of the judgment has been established, the court should immediately enter a thirty day payment order.
A military affidavit is required before entry of a default judgment. The Federal Soldiers’ and Sailors’ Relief Act of 1940 (54 Stat. 1178, 50 U.S.C. App. s. 520 [1]) requires that before a default judgment is entered, "the plaintiff...shall file in the court an affidavit setting forth facts showing that the defendant is not in military service." Except in special circumstances, a separate form of military affidavit should not be required for a small claim. Because speedy trials are the norm for small claims, the plaintiff’s verified statement that the defendant is not in the military in the Statement of Small Claim and Notice of Trial is sufficiently contemporaneous with the entry of judgment to fulfill the requirements of the Act. The filing of a military affidavit does not prevent a default judgment from being voidable upon a showing of a meritorious defense if the defendant was in military service when the judgment was rendered. 50 U.S.C. App. s. 520 (4).
See Standard 7:06 concerning removal of a default judgment.