Beck v. Lavin

• Decision Date: 05 May 1908
• Citation: 15 Idaho 363,97 P. 1028
• 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

May 5, 1908

SERVICE OF PAPERS-SHERIFF-CUSTODY OF PROPERTY-RIGHT OF CUSTODIAN OR KEEPER-JUDGMENT-DEFAULT-SETTING ASIDE-MERITORIOUS DEFENSE.

1. Under the laws of this state, it is the proper practice to serve papers in an action upon the resident attorney.

2. Property in the custody of the sheriff, who places it in the care of a custodian or keeper, is in the absolute control of the sheriff, and the custodian or keeper has no lien thereon for his fees or costs of keeping the same.

3. Affidavits, on motion to set aside a default judgment, must show that the default occurred through mistake, inadvertence or excusable neglect, under the provisions of sec. 4229, Rev Stat. 1887, and that the defendant had a meritorious defense to the action.

4. The provisions of sec. 3445, Rev. Stat. 1887, as amended by Laws 1893, p. 67, provide that every person who, while lawfully in the possession of an article of personal property, renders any service to the owner thereof, in connection therewith has a special lien thereon, etc., has no application to property in the custody of the law.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County. Hon. William W. Woods Judge.

Replevin by Simon Beck against Margaret Lavin and others. A default judgment was rendered for plaintiff, which on motion was set aside, and plaintiff appeals. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

R. E. McFarland, for Appellant.

The laws of this state require that all pleadings in the district courts and the supreme court shall be signed by a resident attorney of the state. (Laws 1905, p. 75.)

Affidavits on motion to set aside a default judgment, under the provisions of sec. 4229, Rev. Stat., must show that the default occurred through mistake, inadvertence, surprise or excusable neglect, and that the defendant has a meritorious defense to the action. This was not done. (Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan & Savings Co. v. Smith, 12 Idaho 94, 85 P. 1084.)

F. T. Post, John P. Gray, and Robert H. Elder, for Respondents.

In addition to the other elements of inadvertence, excusable neglect, surprise and mistake, plaintiff's counsel, by misleading the defendants' attorney, prevented them from asserting their rights. (Cook v. Skelton, 20 Ill. 107, 71 Am. Dec. 250; Binz v. Tyler, 79 Ill. 248; 1 Tidd's Prac. 523.)

"The granting or refusing of an order of this kind rests in the sound legal discretion of the lower court, . . . . and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal." (Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Holzeman v. Henneberry, 11 Idaho 431, 83 P. 497; Western Loan Co. v. Smith, 12 Idaho 103, 85 P. 1084; Watson v. San Francisco, 41 Cal. 17; Barling v. Weeks, 4 Cal.App. 455, 88 P. 502.)

The defendants Lavin have a lien for their charges in connection with the care and custody of this property, and such lien gives them the right to hold this property, independent of the fact that it came legally into their hands as officers of the court. (Sec. 3445, Rev. Stat.; Laws 1893, p. 67; Laws 1901, p. 181; Idaho Comstock v. Lundstrum, 9 Idaho 270, 74 P. 975; Williamson v. Moore, 10 Idaho 749-753, 80 P. 227.)

To reverse the order of the lower court would result "in an obvious miscarriage of justice based upon reprehensible practice." (Barrie v. Northern Assur. Co., 99 Minn. 272, 109 N.W. 249.)

"Where there is a showing not manifestly insufficient, the court should be liberal in the exercise of its discretion in furtherance of justice." (Hayne's New Trial & Appeal, sec. 347.)

In a case like the one at bar, proper practice does not permit the facts stated in the defendant's affidavit, which constitutes his defense to the action, to be rebutted by counter-affidavits. (Mendell v. Kimball, 85 Ill. 583; Douglass v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 P. 624; Gilchrist Trans. Co. v. Northern Grain Co., 204 Ill. 510, 68 N.E. 558; Bristor v. Galvin, 62 Ind. 356; Worth v. Wetmore, 87 Iowa 62, 54 N.W. 57; Benedict v. Arnoux, 32 N.Y.S. 905, 66 N.Y.S. 298; Congdon Co. v. Con. Apex Min. Co., 11 S.D. 376, 77 N.W. 1023; Cutler v. Haycock, 32 Utah 354, 90 P. 899; Minn. Thresher Mfg. Co. v. Holz, 10 N.D. 16, 84 N.W. 585; Freeman on Judgments, 3d ed., sec. 100; 1 Black on Judgments, sec. 351; 23 Cyc. 958.)

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

OPINION

SULLIVAN, J.

This is an appeal from an order vacating and setting aside a judgment obtained by default. The action is one in replevin, commenced by the appellant against the respondents, Lavin and others, to recover the possession of certain personal property, consisting of a lot of undertaking goods, alleged to be of the value of $ 947.50. To the complaint the defendants interposed a demurrer, which appears to have been confessed by the plaintiff, and he thereafter filed an amended complaint, and served the same by mail on one of the attorneys for the defendants. It appears from the record that the attorneys who filed the demurrer to the complaint were nonresidents and, as required by the laws of this state, signed the name of the resident attorney to said demurrer, whom they neglected to notify of that fact. Under our law it is the proper practice to serve papers in an action on the resident attorney, and the service of the amended complaint on the resident attorney was a sufficient service. When the amended complaint was served on such resident attorney, he had no information in regard to said action, and wrote a letter to the attorney for appellant, requesting him to advise the writer in regard to the case, as he was not familiar with it. Counsel for appellant did not answer said letter, and thereafter had a default entered, and after said default was entered, said resident counsel met appellant's attorney on the street, and some conversation occurred between them in regard to the matter, and it appears that the impression was left on the mind of the resident attorney for the defendants that a mistake had been made in sending a copy of said amended complaint to him. The next day thereafter a default judgment was entered against the defendants, requiring them to deliver said personal property to the appellant, or to pay him the value thereof. Some time thereafter a motion was made to set aside said default judgment and to permit the defendants to answer. Several affidavits were filed, pro and con, in support of and against said motion, and the court, after hearing said matter, sustained the motion and set aside the judgment. The appeal is from that action of the court, and the only error assigned is that the court erred in granting said motion.

In order to fully understand this case it will be necessary to consider the manner in which said personal property came into the hands of the defendants in this action. They do not claim to be the owners of the property. They only claim that they have a lien on the same for keepers' fees, or for the rent of the building in which the sheriff had theretofore stored said personal property. The facts leading up to the sheriff's taking possession of said property are substantially as follows: It appears that a proceeding had been commenced for the foreclosure of an alleged chattel mortgage, given by the appellant Beck on...