If the plaintiff does not appear at the oral hearing, his action will be dismissed on application by the defendant. Section 330, ZPO. If the defendant fails to appear, the court will assume that the facts pleaded by the plaintiff are established. To the extent to which these facts justify the action, i.e., in so far as the action is ' conclusive ' (schliissig), on motion of the plaintiff, judgment by default must be given against the defendant (Versiumnisurteil). Section 331, ZPO.
The defaulting party may apply to have a judgment in default of appearance set aside (Einspruch erheben) within a period of two weeks following service of the Versiiumnisurteil. No excuse for failure to appear is required. Application is to be made by way of written motion (before the Landgericht, Oberlandesgericht and Supreme Court this must be signed by an attorney admitted to practice in the court in question) which need contain no more than a reference to the judgment against which it is directed and a statement that application is made to have it set aside.
The application has the effect of bringing the proceedings back to their original state prior to the hearing at which the default occurred. The defaulting party, however, remains liable for the costs of the proceedings.
Nevertheless the ease with which the original position can be restored lends itself to abuses. If, at the next hearing, the same party again defaults, final judgment is...
SECTION XVII - Default Judgments And Undefended Suits
|Author:||E. J. Cohn and G. Meyer|
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