217 P. 600 (Idaho 1923), Atwood v. Northern Pacific Railway Co.

• Judge: MCCARTHY, J. Dunn, William, A. Lee and Wm. E. Lee, JJ., concur. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.
• Parties: T. M. ATWOOD, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY and JAMES C. DAVIS (Substituted for JOHN BARTON PAYNE), as Federal Agent Appointed Under the Terms of Transportation Act of 1920, Appellants
• Date: 30 July 1923
• Citation: 37 Idaho 554,217 P. 600
• Court: Idaho Supreme Court
• Docket Number: .

Page 600

217 P. 600 (Idaho 1923)

37 Idaho 554

T. M. ATWOOD, Respondent,

v.

NORTHERN PACIFIC RAILWAY COMPANY and JAMES C. DAVIS (Substituted for JOHN BARTON PAYNE), as Federal Agent Appointed Under the Terms of Transportation Act of 1920, Appellants

Supreme Court of Idaho

July 30, 1923

DEFAULT JUDGMENT-MOTION TO SET ASIDE-EXCUSABLE NEGLECT-DISCRETION OF TRIAL COURT.

1. The mistake, inadvertence or excusable neglect contemplated by the statute in regard to setting aside defaults is such as might be expected on the part of a reasonably prudent person under the circumstances; the statute does not excuse utter indifference and inattention to business.

2. The question whether mistake, inadvertence or neglect is excusable is addressed in the first instance to the sound discretion of the trial court, and its judgment will not be reversed except for manifest abuse.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Wallace N. Scales, Judge.

Action for damages. Appeal from judgment and order refusing to set aside default. Affirmed.

Judgment and order affirmed, with costs to respondent.

Cannon & McKevitt and M. Reese Hattabaugh, for Appellants.

An application to vacate a default judgment is entrusted to the discretion of the trial court and the improper exercise of such discretion will be corrected when the essential elements necessary to set such discretion in motion are wanting. (Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Valley State Bank v. Post Falls etc. Co., 29 Idaho 587, 161 P. 242; Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245; Deering Harvester Co. v. Thompson, 116 Ga. 388, 42 S.E. 772; Skinner v. Terry, 107 N.C. 103, 12 S.E. 118.)

In determining the question of discretion, the power of the court should be freely and liberally exercised under the statute to mold and direct its proceedings so as to dispose of cases upon their substantial merits. (Pittock v. Buck, 15 Idaho 47, 96 P. 212; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; Humphreys v. Idaho Gold etc. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Holzeman & Co. v. Henneberry, supra; Nicoll v. Weldon, 130 Cal. 666, 63 P. 63.)

Discretionary power means a sound and impartial discretion and should be resolved, in case of doubt, in favor of the application. (Hamilton v. Hamilton, supra; Watson v. San Francisco etc. R. R. Co., 41 Cal. 17.)

Sufficient showing was made by the defendants in their motion and application to vacate the default judgment with supporting affidavits to entitle them to relief under C. S., sec. 6726, on the ground that said judgment was taken against them through their "mistake, inadvertence, surprise, or excusable neglect," and likewise that they possessed a meritorious defense to the cause of action. (Melde v. Beynolds, 129 Cal. 309, 61 P. 932; Tucker v. St. Louis Ins. Co., 63 Mo. 588; Barto v. Sioux City Electric Co., 119 Iowa 179, 93 N.W. 268; Grady v. Donahoo, 108 Cal. 211, 41 P. 41; Hughes Mfg. & Lbr. Co. v. Elliot, 167 Cal. 494, 140 P. 17.)

A. S. Hardy and Jas. F. Ailshie, for Respondent.

A default cannot be opened where entered through carelessness or lack of attention. A clear showing excusing the default must be made; and the order of the trial court will not be reversed unless it clearly appears such court abused its discretion. (Holland Bank v. Lieuallan, 6 Idaho 127, 53 P. 398; Pease v. Kootenai Co., 7 Idaho 731, 65 P. 432; Holzman v. Henneberry & Co., 11 Idaho 428, 83 P. 497; Weston L. & S. Co. v. Smith, 12 Idaho 94, 85 P. 1084; Pittock v. Pittock, ...