60-255. Default. (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, the party is in default. On request and a showing that a party is entitled to a default judgment, the court must render judgment against the party in default for the remedy to which the requesting party is entitled. But a default judgment may be entered against a minor or incapacitated person only if represented by a guardian, conservator or other legally authorized representative who has appeared in the action, or by a guardian ad litem appointed by the court. If the party against whom a default judgment is sought has appeared personally, or by a representative, that party or its representative must be served with written notice of the request for judgment at least seven days before the hearing. The court may conduct hearings or make referrals, preserving any statutory right to a jury trial, when to enter or effectuate judgment it needs to:
(1) Conduct an accounting;
(2) determine the amount of damages;
(3) establish the truth of any allegation by evidence; or
(4) investigate any other matter.
(b) Setting aside a default judgment. The court may set aside a final default judgment under K.S.A. 60-260(b) and 60-309, and amendments thereto.
(c) Judgment against the state. A default judgment may be entered against the state, its officers or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.
History: L. 1963, ch. 303, 60-255; L. 1965, ch. 354, § 4; L. 2010, ch. 135, § 128; L. 2017, ch. 75, § 9; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, §§ 33, 71, 75, 321; L. 1909, ch. 182, §§ 32, 77, 81, 319; L. 1911, ch. 228, § 1; R.S. 1923, 60-408, 60-2528, 60-2803.
(b). G.S. 1868, ch. 80, § 77; L. 1909, ch. 182, § 83; R.S. 1923, 60-2530.
Cross References to Related Sections:
Entry of judgments and orders, see 60-258.
Motion to alter or amend a judgment, see 60-259(f).
Service and filing of pleadings and other papers, see 60-205.
Opening default judgment rendered on service by publication, see 60-309.
Relief from judgment or order, see 60-260.
Time, computation and extension, see 60-206.
Demand for judgment, see 60-254(c).
Guardian ad litem for minors and incapacitated persons, see 60-217(c).
Service upon minors and incapacitated persons, see 60-304(b), (c).
Law Review and Bar Journal References:
Bill of particulars request equated with appearance in family law survey, Harvey S. Berenson, 17 K.L.R. 349, 383 (1969).
"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 534, 535 (1984).
"What Constitutes Excusable Neglect? A Guide for the Kansas Federal & State Practitioner", Steven W. Allton, John W. Broomes, 77 J.K.B.A. No. 5, 6 (2008).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-408, 60-2528, 60-2530, 60-2803, 60-3827 No. 48 and the 1961 Supp. thereto.
1. G.S. 1949, 60-3827, Rule No. 48 mentioned in construing "appearance" hereunder. Sharp v. Sharp, 196 Kan. 38, 41, 409 P.2d 1019.
2. Request for bill of particulars in divorce action constitutes "appearance" within meaning of section. Sharp v. Sharp, 196 Kan. 38, 39, 40, 41, 409 P.2d 1019.
3. Provision for written notice applicable to garnishment proceedings; "appearance" construed; notice required. Jones v. Main, 196 Kan. 91, 92, 95, 410 P.2d 303.
4. Granting motion to set aside default judgment rests in discretion of trial court. Wilson v. Miller, 198 Kan. 321, 322, 424 P.2d 271.
5. Default judgment will be disturbed on appeal only on a showing of abuse of discretion. Cadwallader v. Lehman, 202 Kan. 738, 749, 750, 451 P.2d 163.
6. Cited; default judgment granted on crossclaim for interpleader. Macek v. Swift & Co. Employees Benefit Association, 203 Kan. 581, 585, 455 P.2d 521.
7. Subsection (a) cited; note on garnishee's summons that he had no money constituted appearance. McCreery v. McCreery, 210 Kan. 99, 103, 499 P.2d 1118.
8. District court abused discretion in entering default judgment; motion to set aside sustained. Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 112, 114, 116, 117, 519 P.2d 730.
9. Refusal to set aside default judgment error; excusable neglect. Montez v. Tonkawa Village Apartments, 215 Kan. 59, 61, 62, 523 P.2d 351.
10. Subsection (b) construed; abuse of discretion not present in the allowance of default judgment; no excusable neglect finding under K.S.A. 60-260 upheld. Tyler v. Cowen Construction, Inc., 216 Kan. 401, 406, 532 P.2d 1286.
11. Letter requesting clerk to set case for trial not construed as notice required by section. Goldsberry v. Lewis, 220 Kan. 69, 73, 551 P.2d 862.
12. Applied; default judgments not void because no finding of facts in rendering judgment. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101.
13. Applied; trial court did not abuse discretion in allowing pleadings to be filed out of time. State Farm Mutual Automobile Ins. Co. v. Hall, 221 Kan. 337, 340, 559 P.2d 357.
14. Reasons for decision need not be given in default judgments. Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 368, 598 P.2d 188.
15. Mandate from appellate court does not divest district court of power to consider motion for relief from judgment. Jones v. Smith, 5 Kan. App. 2d 352, 354, 616 P.2d 300.
16. Trial court erred in granting motion for judgment on pleadings; abuse of discretion in not allowing answer to be filed. Simmon v. Bond, 6 Kan. App. 2d 766, 769, 634 P.2d 1148 (1981).
17. Court on own motion may set aside its previous refusal to set aside default judgment. Daniels v. Chaffee, 230 Kan. 32, 33, 630 P.2d 1090 (1981).
18. In an action to establish paternity and nonstatutory obligation for support, the action for support will abate upon the death of the putative father and the action to establish paternity will survive. Gross v. VanLerberg, 7 Kan. App. 2d 99, 100, 638 P.2d 365 (1982).
19. Trial court failed to enter findings but record supported presumption that court found facts necessary to support parental severance judgment. In re Lett & Jackson, 7 Kan. App. 2d 329, 338, 640 P.2d 1294 (1982).
20. Severance of parental rights invalid for lack of adequate notice and because relief granted by default was not requested in pleadings. Sweetser v. Sweetser, 7 Kan. App. 2d 463, 466, 643 P.2d 1150 (1982).
21. Informal communication deemed an appearance; trial court erred in refusing to set aside default judgment. Hood v. Haynes, 7 Kan. App. 2d 591, 592, 597, 644 P.2d 1371 (1982).
22. Notice upheld properly served under subsection (a). Binyon v. Nesseth, 231 Kan. 381, 385, 646 P.2d 1043 (1982).
23. Motion to set aside void judgment can be made at any time. Barkley v. Toland, 7 Kan. App. 2d 625, 626, 646 P.2d 1124 (1982).
24. Motion to vacate filed within reasonable time even though after period of redemption. Mid Kansas Fed'l Savings & Loan Ass'n v. Burke, 8 Kan. App. 2d 443, 444, 660 P.2d 569 (1983).
25. Cited in holding proceedings properly set aside for "surprise" under K.S.A. 60-260(b) where movant had no actual knowledge but acted quickly thereafter. Mid Kansas Fed'l Savings & Loan Ass'n v. Burke, 233 Kan. 796, 797, 800, 666 P.2d 203 (1983).
26. Notice of motion for default judgment on party who appeared must be served before motion heard. Star Lumber & Supply Co. v. Capital Constr. Co., 238 Kan. 743, 753, 715 P.2d 11 (1986).
27. Cited in opinion that failure to comply with S. Ct. rule 118(d) renders resulting default judgment voidable and not void. Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 300, 720 P.2d 1121 (1986).
28. Failure to give required notice, while not rendering judgment void, justifies setting it aside. Wellsville Bank v. Sutterby, 12 Kan. App. 2d 585, 588, 752 P.2d 700 (1988).
29. Constitutional right to procedural due process forfeited where unresponsive defendant fails to answer timely or appear at hearing. Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 494, 781 P.2d 1077 (1989).
30. Default judgments in excess of petition's demands examined; voidable to extent of excess. Producers Equipment Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, 395, 808 P.2d 881 (1991).
31. Reasonable time within which relief may be requested by defendant in military service from voidable default judgment examined. In re Marriage of Thompson, 17 Kan. App. 2d 47, 832 P.2d 349 (1992).
32. Liability of insurer providing uninsured motorist coverage for judgment obtained by insured against uninsured motorist examined. Pickens v. Allstate Ins. Co., 17 Kan. App. 2d 670, 673, 843 P.2d 273 (1992).
33. Whether notice of plaintiff's application for default judgment forfeited where defendant has no contact with court after service examined. Midland Bank of Overland Park v. Rieke, 18 Kan. App. 2d 830, 831, 832, 833, 834, 835, 861 P.2d 129 (1993).
34. Whether insurers experts' opinion regarding unreasonableness of default judgment against insured relevant in determining liability examined. Johnson v. Studyvin, 828 F. Supp. 877, 887 (1993).
35. Whether supreme court rule 131(b) was violated in default divorce action examined. In re Marriage of Welliver, 254 Kan. 801, 810, 869 P.2d 653 (1994).
36. Whether default judgment for defendant is appropriate remedy should district court fail to hold timely retroactive sentence conversion hearing examined. State v. Geis, 20 Kan. App. 2d 778, 781, 894 P.2d 213 (1995).
37. Soldiers' and sailors' Civil Relief Act of 1940 does not apply to persons who are AWOL or incarcerated under military law; default judgment valid. In re Marriage of Hampshire, 261 Kan. 854, 855, 859, 934 P.2d 58 (1997).
38. Informal communications between parties did not constitute appearance; default judgment upheld. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 25, 956 P.2d 729 (1998).
39. Cited; K.S.A. 61-3301 does not apply to default judgments granted against garnishees; K.S.A. 60-260 applies to defaults obtained pursuant to K.S.A. 61-3514. Southwestern Bell Yellow Pages, Inc. v. Beadle, 40 Kan. App. 2d 989, 993, 197 P.3d 896 (2008).
40. Nonlender is not a contingently necessary party in a mortgage foreclosure action and is not required to be allowed to intervene. Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009).
41. Default judgment reversed because of the district court's failure to comply with the three-day notice requirement. Forer v. Perez-Lambkins, 42 Kan. App. 2d 742, 216 P.3d 718 (2009).
42. Default judgment was held to be not clearly erroneous under the facts of this case. Church of God in Christ, Inc. v. Board of Trustees, 47 Kan. App. 2d 674, 280 P.3d 795 (2012).
43. A district court violated a father's due process rights when it adjudicated a child as a child in need of care by default when the father did not timely appear at pretrial hearing. A blanket notice in the petition was not sufficient. In re J.L., 57 Kan. App. 2d 60, 449 P.3d 762 (2019).
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