Barrett v. Oakley

• Decision Date: 18 June 1929
• Docket Number: 1557
• Citation: 40 Wyo. 449,278 P. 538
• Parties: BARRETT v. OAKLEY, SHERIFF, ET AL. [*]
• Court: Wyoming Supreme Court

278 P. 538

40 Wyo. 449

BARRETT v. OAKLEY, SHERIFF, ET AL. ^[*]

No. 1557

Supreme Court of Wyoming

June 18, 1929

APPEAL from District Court, Lincoln County; JOHN R. ARNOLD, Judge.

Action by Mary Barrett against D. C. Oakley, Sheriff of Lincoln County, and the Mountain Trading Company of Diamondville Wyo. Judgment was entered by default against defendant last named, and, from an order vacating the default judgment plaintiff appeals.

Affirmed.

For the plaintiff and appellant, there was a brief by N.W. Reynolds of Kemmerer, Wyoming, and Walter Q. Phelan of Cheyenne, and oral argument by Mr. Phelan.

The trial court erred in sustaining defendant's motion to quash the service of original summons. As the plaintiff and appellant had an alias summons served, the point is not pressed further than to state the error; 32 Cyc. 533, n. 93. The trial court also erred in its order vacating the judgment and permitting the defendant to file an answer; the Mountain Trading Company having been properly served with summons was in default and plaintiff was entitled to have the default entered. 34 C. J. 147, 159, 173. A defendant in default is not entitled to notice of further proceedings in the case. Christerson v. French, 182 P. 27; Nuestel v Spokane R. Co., 149 P. 462; Co. v. Land Co., 92 P. 980, 34 C. J. 185, 186; Reno Electrical Works v. U. S. Fidelity Co., 182 P. 386; Citizens Co. v. Usnik, 194 P. 862. A party is not entitled to have a judgment vacated for failure to notify him of some intermediate step in the case. 34 C. J. 271-272, and cases cited. A motion to strike a motion is not proper practice. 12 Wyo. 72; 24 Wyo. 359; 27 Wyo. 272. A sheriff's return may be amended. 32 Cyc. 337; Fordiner v. Carter, 9 Kan. 674. A mistake in regard to the law is not ground for a vacation of a default judgment. 34 C. J. 370 and cases cited. The record must show by specific averments that the applicant has been in fault or that he has exercised due diligence. 34 C. J. 329; Lynch v. Co., (Ariz.) 179 P. 956; Olentine v. Alberty, (Okla.) 198 P. 296. A good excuse must be shown for failure to defend at the proper time in order to warrant vacation, even where a meritorious defense is shown. 34 Cyc. 422; Bannerot v. McClure, 90 P. 70; Tichnor v. McGinnis, (Ida.) 193 P. 850; Pearce v. Co., (Mont.) 106 P. 563; Nelson v. Co., (Ida.) 165 P. 1125; Green v. Wiederhold, 181 P. 981. Discretion will not be exercised where no excuse is shown for failure to perform. McClure v. Clark, (Minn.) 101 N.W. 951.

For the defendant and respondent, there was a brief by T. S. Taliaferro, Jr., and Arthur Lee Taliaferro, of Rock Springs, Wyo.

The vacation of default judgments lies within the discretion of the trial court. Conord v. Runnels, 23 O. S. 601; Bank v. Smith, (Ohio) 130 N.E. 502. Default judgments may be vacated in the interest of justice. Kester v. Wagner, 22 Wyo. 518, and new trials may likewise be granted on the same ground. Heffner, et al. v. Scranton, 27 O. S. R. 582; Ferguson v. Gilbert and Rush, 16 O. S. 97. It would have been manifest error to refuse to set aside the judgments in this case. Boulter v. Cook, 32 Wyo. 451. The sheriff's return did not show service upon respondent. Authorities cited by appellant are not in point. Bordeno v. Guber, (Kan.) 196 P. 232. New trials upon sufficient grounds are favored. Armstrong v. Hartford, (Ida.) 195 P. 301; Farias v. Farias, (Calif.) 164 P. 818; Hannan v. St. Clair, (Colo.) 96 P. 822; Kersten v. Coleman, (Mont.) 144 P. 1092; Evans v. Church, (Ia.) 146 N.W. 822; Lynch v. Co., (Ariz.) 179 P. 956. A careful analysis of the cases cited by appellant will readily distinguish them from the facts involved here. The ruling of the trial court has the support of McDaniel v. Hoblit, 34 Wyo. 512.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The appellant, as plaintiff below, brought an action of replevin in the District Court of Lincoln County, to recover certain wool of the alleged value of $ 5073.57 and damages for its detention from D. C. Oakley, Sheriff of Lincoln County, Wyoming, and the Mountain Trading Company, a corporation, as defendants. Oakley died during the pendency of the action, and as no substitution of parties was made, the Mountain Trading Company--hereinafter to be referred to as the "trading company" or as the "defendant"--is the only respondent here. Inasmuch as the property involved was never taken on the replevin writ, but was left in the possession of the defendants, the action proceeded as one for damages for conversion of the personal property already mentioned.

The defendants severally questioned the original service of process made upon them, with the ultimate result that on May 13, 1927, upon a precipe therefor filed by her counsel, plaintiff procured the issuance of another summons in the proceeding. This was served and return thereon made on the following day by the Sheriff of Lincoln County. So far as is material to be considered here, this return recited that service was made by delivering a copy of the summons, with its endorsements, together with a copy of the petition in the action, to one "A. M. King." For more than a year thereafter and until June 2, 1928, neither the plaintiff nor the trading company did anything to bring the cause at issue, as regards the defendant last mentioned.

On that date a notice, motion and affidavit were filed in the office of the Clerk of the District Court of Lincoln County. Copies of these papers had, that same day, been served by a deputy sheriff of the county, as the certificate of that official states, upon "A. M. King, Manager of the Mountain Trading Company, personally." The notice, omitting caption and signatures of counsel was in the following form:

"To the above named defendants, the Mountain Trading Company:

"You will please take notice that the plaintiff has filed her motion for leave of court to amend the Sheriff's Return; you are further notified that this motion will be heard by the court at two o'clock P. M. on June 5th, or as soon thereafter as the matter may be heard."

The motion sought leave of court and an order "that the sheriff be permitted to amend his return by adding thereto after the words "'A. M. King' the words 'the manager and Agent in charge of the office of the defendant, the Mountain Trading Company.'"

The affidavit was signed by the Sheriff of Lincoln County and in substance set out that it was made in support of the aforesaid motion for leave to amend his return on the alias summons; that he received such alias summons in the action above described and served the same by delivering it, with a copy of the petition, "to A. M. King, who was at that time the Manager and the Agent in charge of the office of the Defendant, the Mountain Trading Company, a Corporation; that he thereafter made due return of said service, and that by an error of omission in said return, he failed to state that the said A. M. King was the Manager and Agent in charge of the office of the Mountain Trading Company, a Corporation. That this affiant knows now and knew at the time of said service that the said A. M. King was the manager and Agent in charge of the office of the defendant, the Mountain Trading Company, a Corporation."

On the 5th day of June, 1928, notwithstanding the notice above recited, no hearing was had and nothing apparently was done in the case, except that the trading company filed a motion to strike plaintiff's motion for leave to amend the sheriff's return, on the ground that the supporting affidavit was a nullity. The record on this day does not show any resetting of the hearing on the motion for leave to amend for a future date, or that any further notice was given to the trading company or its counsel when the matter would or could be presented to be heard by the court. Nevertheless, the following day, the court proceeded to hear and dispose of both of the aforesaid motions. At this hearing the trading company was unrepresented, either by agent or counsel. An order was immediately entered by the court denying the motion to strike and sustaining the motion for leave to amend the sheriff's return. A further order was made the same day, June 6, 1928, amending the return in accordance with the prayer of the motion so sustained. Thereupon plaintiff filed a motion, asking that the default of the trading company be entered and that judgment be given against it for failure to plead to plaintiff's petition, as required by law. The default of the defendant was forthwith noted by the court, and after hearing plaintiff's witnesses, a judgment in her favor, against the trading company, was rendered for the principal sum of $ 5,073.57 and $ 1105 interest. At this hearing, also, the trading company was unrepresented.

Three days later, or on June 9, 1928, the trading company, by its counsel, filed a motion to vacate and set aside the judgment thus entered, alleging want of notice on its part that the cause was to be tried upon the merits. Thereafter and on the 13th and 14th of June, 1928, respectively, the trading company filed two supplemental motions to set aside the aforesaid judgment, the last one being supported by affidavit of counsel and asserting in substance, inter alia, that the proceedings in the case on the 6th day of June 1928, were had without the matter being set for hearing, and without any notice to the trading company thereof. This motion also averred that the trading company had a good and valid defense to the action, in that the property mentioned in plaintiff's petition never was owned by her, but in fact belonged to another, by whom it was agreed that it should be held by the defendants in satisfaction of a judgment in favor of the trading company. Counter-affidavits were filed...