Beck v. Lavin

• Decision Date: 14 November 1908
• Parties: SIMON BECK, Appellant, v. MARGARET LAVIN et al., Respondents
• Court: Idaho Supreme Court

97 P. 1028

15 Idaho 363

SIMON BECK, Appellant, v. MARGARET LAVIN et al., Respondents

Supreme Court of Idaho

November 14, 1908

[Copyrighted Material Omitted]

Reversed and remanded.

SULLIVAN J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This case was submitted to this court at its March term, 1908, and was decided by the court on May 5, 1908 (ante, p. 363, 97 P. 1028). Thereafter a petition for rehearing was granted and the case was again orally argued at the October term of this court. The facts necessary to an understanding of the case are set forth in the former opinion and will not be repeated here.

The only point urged on the rehearing was that the court had erred in considering counter-affidavits on the motion to set aside the default, which affidavits, it is contended, controverted the facts set up as a defense. We did not consider in the former opinion that the facts referred to in the counter-affidavit were a contradiction of the proposed defense, but considered them as further and additional facts connected with said transaction that had not been set out in the proposed defense. But conceding that they were contradictory of the facts set up as a defense to the action, it would be of no consequence in this case, for the reason that the facts plead do not constitute a defense.

It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed, which affidavit should show sufficient cause for setting aside the default as well as the facts that would constitute a defense to the action; but proper practice does not permit the facts stated in the applicant's affidavit, which constitute his defense to the action, to be rebutted by counter-affidavits. The court will not try the merits of the case upon affidavits, but will hear counter-affidavits as to the excuse for permitting the default. (Douglass v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 P. 623; 23 Cyc. 958.)

The defendants in their application to set aside the default as a defense set forth a certain contract or stipulation entered into between this appellant and the sheriff of Kootenai county, and another, whereby certain proceedings or actions then pending should be settled and adjusted, one of which actions involved the personal property which is sought to be replevined in this case. The third and fourth paragraphs of that stipulation are as follows:

"3. That the plaintiff Simon Beck have the personal property covered by said chattel mortgage, free and clear of any and all claims on the part of the defendants or either of them....