
    Ivers P. Lawrence and another vs. Richard H. Lawrence and another
    
    Western District
    March 12, 1990.
    Present: Dohoney, Brennan & McGuane, JJ.
    Charles F. Perrault for the plaintiffs.
    Joan 0. Vorster for the defendants.
    
      
       Elizabeth L. Thoms, as co-executors of the Estate of Richard H. Lawrence, Sr.
    
    
      
       Elaine M. Lawrence.
    
   Dohoney, J.

The plaintiffs filed this Petition to Establish a Report pursuant to Dist./Mun. Cts. R. Civ. P., Rule 64. Based upon the affidavits and agreements of counsel, the Report is hereby established as follows:

REPORT

This is an action on a promissory note in which the plaintiffs, as executors of the Estate of Richard H. Lawrence, Sr., seek to recover the sum of $10,000.00 plus interest under a certain promissory note executed by the defendants on or about November 25,1985.

The Clerk-Magistrate dismissed the complaint on February 3,1989, for failure of the plaintiffs to answer interrogatories. The plaintiffs filed a Motion to Vacate Judgment of Dismissal. This Motion was denied and this denial is the issue on appeal.

The relevant events are as follows:

1. On June 9,1988, the defendants filed Interrogatories and Request for Production of Documents to be answered by the plaintiffs..

2. Onjuly 14,1988, the plaintiffs filed a Motion for a Protective Order to preclude the defendants from obtaining the requested discovery.

3. On August 9, 1988, the defendants filed a Motion to Compel Answers to Interrogatories and Production of Documents.

4. The motions were marked for a hearing on September 16,1988 at which time the Court invited both parties to attempt to resolve this issue by way of a Motion for Summary Judgment. The parties then withdrew their respective Motions for Protective Order and to Compel Discovery, from hearing.

5. On October 14,1988 this Court (Gelinas, J.) heard argument in support and in opposition to plaintiffs' Motion for Summary Judgment

6. On October 14,1988 this Court (Gelinas, J.) denied the plaintiffs' Motion for Summary Judgment on grounds that there were genuine issues of material fact

7. On December 14,1988, the defendants filed an Application under rule 33 (a) to Compel the Plaintiffs to Answer Interrogatories.

8. On December 15,1989, the Clerk-Magistrate mailed a notice of Application for Final Judgment of Dismissal to the parties.

9. The plaintiffs remarked their previously filed Motion for a Protective Order. The defendants remarked their previously filed Motion to Compel Discovery. On December 30,1987, both parties appeared before the Court for hearing on the Motion to Compel and the Motion for Protective Order.

10. On January 3,1989 Judge Gelinas issued his ruling on plaintiffs' Motion for Protective Order and defendants1 Motion to Compel, ordering the plaintiffs to answer certain interrogatories and to produce certain documents and relieving plaintiffs of the burden of answering certain interrogatories and producing certain documents. The plaintiffs did not answer the Interrogatories or produce the documents.

11. On February 3,1989 the defendants then made a Reapplication for Dismissal under Rule 33. A copy of the reapplication was sent to plaintiffs' counsel.

12. The Clerk of the District Court notified counsel for the defendants that judgment had been entered on February 3,1989 against the plaintiffs dismissing the case. Plaintiffs did not receive Notice of the Dismissal.

13. On March 27,1989, the plaintiffs attempted to file Answers to Interrogatories and Responses to the Request for Production of Documents.

14. On May 11, 1989 the plaintiffs filed a Motion to Vacate the Judgment for Dismissal claiming that the defendants' application under Rule 33(a) was filed untimely.

15. On May 19,1989 the Court (Gelinas J.) heard arguments from both parties on the Motion to Vacate the Judgment for Dismissal. The Court took the matter under advisement and on June 5,1989 the Court denied the plaintiffs' Motion to Vacate Judgment

This Report contains all the evidence material to the question reported.

The plaintiffs claim to be aggrieved by the Denial of the Motion to Vacate Judgment and filed a Petition to Establish a Report. The Report is hereby established and is before the Appellate Division for determination.  