Armstrong v. Hartford Fire Ins. Co.

• Decision Date: 23 November 1920
• Citation: 33 Idaho 303,195 P. 301
• Parties: SUSIE ARMSTRONG, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Respondent
• Court: Idaho Supreme Court

195 P. 301

33 Idaho 303

SUSIE ARMSTRONG, Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Respondent

Supreme Court of Idaho

November 23, 1920

JUDGMENT-DEFAULT-SETTING ASIDE-DISCRETION-ABUSE OF.

1. Where the showing fails to present any fact which can appeal to the discretion of the court, it is an abuse of the trial court's discretion, and is error to vacate a judgment and set aside a default.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to recover on a policy of fire insurance. Default judgment for plaintiff. Appeal from order vacating the judgment and setting aside the default. Reversed.

Order reversed. Costs awarded to appellant.

Edens &amp Anderson, for Appellant.

The court abused its discretion and erred in holding a sufficient showing had been made to set aside the default and judgment. (Heaton v. Peterson, 6 Ind.App. 1, 31 N.E. 1133; Hittle v. Zeimer, 164 Ill. 64, 45 N.E. 419; H C. Herbst Importing Co. v. Hogan, 16 Mont. 384, 41 P 135.) Press of business is no reason to set aside a default. (Bonnifield v. Thorp, 71 F. 924; Bowen v. Webb, 34 Mont. 61, 85 P. 739; Holloway v. Holloway, 97 Mo. 628, 10 Am. St. 339, 11 S.W. 233; Cresswell v. White, 3 Ind.App. 306, 29 N.E. 612.)

The fact that counsel did not make a notation on his calendar or made the wrong notation will not suffice. (Valley State Bank v. Post Falls L. & W. Co., 29 Idaho 587, 161 P. 242.)

In vacating a default the matter rests in the discretion of the lower court, but such discretion is a sound legal one, and not a personal or mental discretion to be exercised ex gratia. (Bailey v. Taaffe, 29 Cal. 422; Nuestel v. Spokane Int. Ry. Co., 27 Idaho 367, 149 P. 462.)

White & Bentley and H. B. Thompson, for Respondent.

Where a judgment has been entered by default and a timely application is made to set aside the default and permit an answer to the merits to be filed, and such answer discloses upon its face a meritorious defense, as a general rule if there be any reasonable doubt on the matter, it will be resolved in favor of granting the application and allowing a trial upon the merits, and on an appeal from an order granting such an application every reasonable presumption will be indulged in support of the order opening default and allowing a trial on the merits. (Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Pittock v. Buck, 15 Idaho 47, 96 P. 212.)

An order setting aside a default judgment under the statute authorizing the court to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise or excusable neglect will not be disturbed, unless it clearly appears that the trial judge has abused his discretion. (Porter v. Bryson, 35 Cal.App. 688, 170 P. 1068; Nicoll v. Weldon, 130 Cal. 666, 63 P. 63; Harn v. Boyd (Okl.), 170 P. 505; Buell v. Emerich, 85 Cal. 116, 24 P. 644.)

BUDGE, J. Morgan, C. J., Rice, C. J., McCarthy, Dunn and Lee, JJ., concurring.

OPINION

BUDGE, J.

On March 18, 1918, appellant filed her complaint against respondent to recover on a policy of insurance the sum of $ 2,336.90 and accrued interest. Summons was served on respondent the twenty-second day of March, 1918. A demurrer was interposed to the complaint and on the twenty-sixth day of April, 1918, was sustained and the complaint was amended and respondent given twenty days to answer. On the seventeenth day of May, 1918, respondent was given ten days' additional time or until May 27, 1918, to answer. No answer having been filed within this time, the clerk's default was entered on the twenty-eighth day of May, 1918, and judgment entered for $ 2,389.61. On May 31, 1918, respondent filed its motion to vacate the judgment and set aside the default. Two affidavits made by Finis Bentley, one of the respondent's attorneys, were filed in support of the motion. The first affidavit recites that on the seventeenth day of May, 1918, affiant received from McCrea, an attorney of Salt Lake City, Utah, also one of respondent's attorneys, an answer to the complaint and a letter asking that a ten day extension be obtained in order that he might redraft the answer; that affiant obtained the extension, notified McCrea, and expected to hear from him with a redrafted answer. He did not make a notation on his calendar for the reason that he expected upon the receipt of the redrafted answer to file it. That he instructed McCrea that a copy of the redrafted answer be mailed to Edens & Anderson, attorneys for appellant, and supposed that this had been done. That he did not file the original answer, expecting to hear from McCrea, but received no redraft of the answer from him, and through inadvertence neglected to file the original answer on the twenty-seventh day of May, 1918, fixed in the order extending time to file the answer. That affiant was busy in Red Cross work on the latter date, made a trip to Blackfoot in the interest of the Red Cross and neglected through inadvertence to file the answer. The second affidavit recites:

"That his wife is now and since the twentieth day of May, 1918, has been confined to St. Anthony's Hospital in Pocatello and was obliged to undergo two severe operations; that in addition she was suffering from injuries received from an automobile accident, . . . . that her injuries were such that it is a...