Rule 48. Judgment by default

Judgment by default may be entered as follows:

(a) By the Clerk

(1) When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, except when based upon writs of attachment, capias ad respondendum, replevin or claims based directly or indirectly upon the sale of chattels, wherein a chattel has been repossessed peaceably or by legal process, the clerk upon request of the plaintiff, upon oral proof or upon affidavit, shall enter judgment for the net amount due and costs against the defendant, if he has been defaulted for failure to appear, plead or otherwise defend, and if he is not an infant or incompetent person. If proof is made by affidavit, it shall be sworn to not more than 15 days before its presentation to the clerk; it shall show that affiant has competent knowledge of the facts sworn to and, if not made by the plaintiff, that affiant is authorized to make the same on behalf of the plaintiff, and shall verify all facts necessary to establish the claim and the amount due after deducting all credits to which defendant is entitled. Copies of all papers and book entries relied upon shall be annexed to the affidavit, or if annexed to the complaint, may be verified by reference in the affidavit. The affidavits of more than one person may be filed, if necessary. The clerk may require the production for inspection of the originals of any papers and books relied upon, unless they have been lost or destroyed and their absence accounted for.

(2) In summary actions for recovery of premises based upon nonpayment of rent, where the defendant fails to appear, plead or otherwise defend, and the defendant is not an infant or an incompetent person, judgment for possession may be entered on affidavit.

(b) By the Court. In all other cases, the party entitled to a judgment by default shall apply to the court therefor. No judgment by default shall be entered against an infant or incompetent person except upon notice to his guardian or a guardian ad litem appointed for him. The court may order written notice of the application for judgment to be served upon the party against whom judgment by default is sought if it shall seem to the court that justice so requires.

Whenever application is made for the entry of judgment by default in deficiency suits or claims based directly or indirectly upon the sale of a chattel, which chattel has been repossessed peaceably or by legal process, the plaintiff shall prove before the court a description of the property, the amount realized at the sale or credited to the defendant and the cost of sale.

Failure to appear

Defendant who did not plead, answer or enter an appearance was not entitled to notice of application for default or of default judgment, and where motion to set aside default judgment did not assert a potentially good defense court would order that within 20 days defendant file affidavit including a potentially good defense, a justifiable excuse for not taking appropriate action earlier and a memorandum supporting his claim, and execution of judgment would be stayed upon posting of bond by defendant. Government v. V.I. Pleasure Boat, Inc., Terr. Ct. St. T. and St. J. 1977, 13 V.I. 460.