Bertagnolli Bros. v. Bertagnolli

• Decision Date: 10 May 1915
• Docket Number: 762
• Parties: BERTAGNOLLI BROS. ET AL v. BERTAGNOLLI ET AL
• Court: Wyoming Supreme Court

148 P. 374

23 Wyo. 228

BERTAGNOLLI BROS. ET AL v. BERTAGNOLLI ET AL

No. 762

Supreme Court of Wyoming

May 10, 1915

ERROR to the District Court, Sweetwater County; HON. DAVID H CRAIG, Judge.

Action upon a promissory note. Defendants who were in default filed a demurrer out of time and while the same was pending undisposed of, the Clerk, upon application of plaintiff entered a default judgment against defendants pursuant to the provisions of Section 4456, Comp. Stats. 1910. From an order overruling their motion for a new trial, defendants prosecute error.

Judgment reversed and cause remanded.

T. S Taliaferro, Jr., and W. A. Muir, for plaintiffs in error.

The Clerk was without authority to decide as to the standing or merits of the demurrer. No such authority is delegated by Comp. Stats. 1910, Section 4456. The authority of the Clerk is purely ministerial, and is fixed by statute. (6 N. C. Y. P. P. 102.) The judicial power of the state is prescribed by the Constitution (Article 5, Section 1). The authority of the Clerk to enter default judgments in certain cases is based upon an amendment made to a statute adopted from Ohio. (S. L. 1905, Chapter 62; Comp. Stats. 1910, Section 4456.) A default judgment cannot be entered by the Clerk after the filing of a plea, even filed out of time, while the plea remains undisposed of. (Pitt v. Clark, 5 Wis. 198; Castle v. Judson, 17 Ill. 381; Cook v. Forrest, 18 Ill. 581; Corbin v. Terrell, 20 Ill. 516; Walker v. Tiffin, 2 Colo. 89; Acock v. Halsey (Calif.), 27 P. 194; Bowman v. Dickerson, 18 Cal. 420; Canal Bank v. Newberry, 7 Ia. 4; Briggs v. Sholes, 14 N.H. 262; Lunnun v. Morris, 95 P. 909.) Failure of defendants to plead was shown by affidavit to be due to their ignorance and they should be allowed to defend upon the merits. (Hanthorn v. Oliver, 51 P. 440.) The application to the court was in fact to set aside the default judgment. This he refused to do and the only way to secure a review of that ruling is by a motion for a new trial. (Sutherland Code Pleading, Vol. 1, Sec. 1420.) Where the objection attacks the jurisdiction an appeal will lie to reverse the judgment as void. (6 Enc. Pl. & Pr. 244.)

M. C. Brown and D. A. Preston, for defendants in error.

Default judgments entered by Clerks have been universally upheld. (6 Enc. Pl. & Pr. 67.) The Clerk, of course, acts ministerially. (6 Enc. Pl. & Pr. 104.) A failure to answer, as required by law and on time, is a confession of all matters pleaded in the petition. (6 Enc. Pl. & Pr. 106; Comp. Stats. 1910, Section 4456.) The entry by the Clerk is, therefore, a form of confession of judgment and is a judgment of law. After default of appearance or answer, an appearance by filing a frivolous demurrer cannot change the facts so confessed. (6 Enc. Pl. & Pr. 132, and cases cited in notes.) Where a defendant makes default he is out of court and is not entitled to take further steps affecting plaintiff's right of action. (Fisk v. Baker, 47 Ind. 534; Lake v. Jones, 49 Ind. 300; Briggs v. Suegliase, 45 Ind. 14; Brayton v. Delaware County, 16 Ia. 44; Crete v. Hazelton, 50 N.W. 355; Gilstrap v. Filtz, 50 N.W. 428; 6 Enc. Pl. & Pr. 126.) The result may be changed on application to set aside the default, but it is discretionary for the court. Default has been defined by this court. (Brophy v. Brunswick & Balke, 2 Wyo. 91.) In New York an answer filed out of time is regarded as a nullity, and default judgment may be taken. (Vol. 6, Note 1, Enc. P. & P.) The Colorado cases are restricted to matters occurring in court. (Walker v. Tiffin, supra.) In Alabama the matter is settled by rule of court. (Rhoades v. McFarland, 43 Ala. 95.) In Ohio an answer filed out of time will not prevent default. (Barnesville Bank v. Western Union Telegraph Co., 30 Oh. St. 355.) When a plea is bad or frivolous it is a nullity and default may be entered. (Faus v. Stickney, 3 Johns. N. Y. 541.) The demurrer in this case is clearly frivolous and should be treated as a nullity. We cite on the question of default: Martin & Nichols v. Moon, 1 Wyo. 23; Brophy v. Brunswick & Balke, 2 Wyo. 91; Garbanati v. Beckwith & Co., 2 Wyo. 216. There was no affidavit of merit filed showing a defense. (Black v. Kearney, 132 Cal. 18, 64 P. 267; Nevada Bank v. Dresbach, 63 Cal. 324.) It is an abuse of discretion to open a default without a showing of merits. (Sandowitz v. Duane, 62 N.Y.S. 749; Marsh v. Griffin, 123 N.C. 660, 31 S.E. 840.) An affidavit by an attorney is insufficient. (25 Misc. 695; 6 Enc. Proc. 834-835.) It is contended that defendant had no right to file pleadings until the default was set aside by the court. (6 Enc. Pl. & Pr. 126.) Defendants' remedy was to move to set aside the default and judgment. (6 Enc. Pl. & Pr. 151-152.) A motion for a new trial is improper. (Crowin v. Thomas, 83 Ind. 110; Adams v. Howard, 14 Ver. 158.) A judgment will not be vacated by motion or petition until it is adjudged that there is a valid defense. (Comp Stats. 1910, Section 4656.)

T. S. Taliaferro, Jr., and M. E. Wilson of Sale Lake, of counsel, in reply.

Section 4456, Comp. Stats. 1910, is unconstitutional and void for irregularity in its enactment. (Art. 3, Section 24, State Constitution.) The title of the act was defective, as Section 3606, R. S. 1899, did not relate to judgments on default. Section 5133 of the Ohio Statutes never authorized the Clerk to enter a default judgment. The history of such legislation is reviewed in Association of Credit Men v. Bowman, 113 P. 63 (Utah). Bank v. Telegraph Co., cited by the opposition, is not in point. The amendment of Section 4456 is unlike the Utah Statute, Section 3179. The entry of default differs from the entry of a judgment. (2 Freeman on Judgments, 533.) The purpose of a default is to enter of record the fact that the time for answer had expired. (Fitnam Trial Procedure, Section 508.) Under the California practice a Clerk may not enter a default in any case, where answer, demurrer or motion has been filed. (Sutherland Code Pleading, 1443.)

M. C. Brown and D. A. Preston, in reply.

Section 4456 is constitutional. A similar statute was upheld in Utah. (Utah Association of Credit Men v. Bowman, 113 P. 63; Morebeck et al. v. Bradford-Kennedy Co. et al., 113 P. 82; Hall v. Whittier, 116 P. 1031; Hunt v. City of San Francisco, 11 Cal. 259; Smith v. Carley, 8 Ind. 451.) An affidavit of merits or a verified answer is necessary in all cases to set aside a default. (Silver Peak Gold Min. Co. v. Harris, 116 F. 39; Black v. Kearney, 132 Cal. 18, 64 P. 267; Nevada Bank of Cal. v. Dresback, 63 Cal. 324; Fosden v. Richter, ___ L. R. 23; 2 B. D. 124; Sandowitz v. Duane, 62 N.Y.S. 749; Davis v. Solomon, 56 N.Y.S. 80; Marsh v. Griffin, 123 N.C. 660, 31 S.E. 840; Davis v. Solomon, 56 N.Y.S. 80; Onivo v. Ward, 19 Wis. 232; Buston v. Galvin, 62 Ind. 352; Marsh v. Bost, 41 Mo. 493; Begler v. Baker, 40 Neb. 325.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is an action on a written contract for the payment of money only, brought in the District Court in Sweetwater County by Mike Bertagnolli against Bertagnolli Bros., a domestic copartnership, and Phillip Bertagnolli. The petition was filed June 26, 1912, and a summons was issued on the same day properly made returnable July 8, 1912, and requiring the petition to be answered on or before July 27, 1912, that being the third Saturday after the return day of the summons. No question is here raised as to the sufficiency of the summons or the service thereof. Judgment was prayed in the sum of $ 1,000 with interest thereon at eight per cent per annum from May 29, 1911, and that sum was endorsed upon the summons as the amount for which with interest as aforesaid judgment will be taken if the defendants fail to answer. No answer or other pleading was filed within the time prescribed by law and stated in the summons, but on August 7, 1912, the defendants jointly filed a demurrer to the petition on the ground that the cause of action was barred by the statute of limitations; the said demurrer being filed without leave of court or the consent of the plaintiff. Thereafter, on September 16, 1912, the plaintiff, through his attorney, filed a written application for default judgment to be entered by the clerk of the court, and thereupon the clerk entered a judgment against the defendants and in favor of the plaintiff for the amount with interest endorsed on the summons and specified in the petition, viz.: $ 1,110, together with costs of the action. It appears by the letter addressed to the clerk and inclosing the application for judgment that plaintiff's attorney was aware of the fact that said demurrer had been filed, but that he considered it a nullity because filed after the time for answer had expired, and so clearly without merit that even if it had been filed in time the court would not permit the defendants to appear further in the case.

On September 18, 1912, the defendants filed a motion for new trial and on September 19th an amendment to that motion. The motion and the amendment were afterwards overruled by the court, the entry recording such ruling reciting that the court refused to set aside the judgment entered by the clerk or grant a new trial. The entry also recites that each of the defendants excepted to the ruling. Without reciting the several grounds stated in the motion or the amendment thereto it is sufficient to say that the defendants thereby challenged the authority of the clerk to enter the judgment while the demurrer remained on file and undisposed of, and alleged surprise through a misunderstanding on the part of the defendants as to the time they were required to appear or answer the petition. Though called a motion for new trial and asking that a...