Boise Valley Traction Co. v. Boise City

• Citation: 37 Idaho 20,214 P. 1037
• Parties: VALLEY TRACTION COMPANY, a Corporation, Appellant, v. BOISE CITY, a Municipal Corporation, Respondent
• Decision Date: 25 April 1923
• Court: United States State Supreme Court of Idaho

214 P. 1037

37 Idaho 20

VALLEY TRACTION COMPANY, a Corporation, Appellant, v. BOISE CITY, a Municipal Corporation, Respondent

Supreme Court of Idaho

April 25, 1923

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APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Appeal from an order of the District Court vacating judgment and setting aside default. Reversed.

Judgment reversed. Costs awarded to appellant.

Hawley & Hawley, Sam S. Griffin and C. T. Ward, for Appellant.

The sheriff may act through his deputies; the return of service of process, where service in fact was made by the sheriff himself, is sufficient though made out by a deputy under the direction of and upon information received from the sheriff. (Goddard v. Harbour, 56 Kan. 744, 44 P. 1055.)

The sheriff's return is prima facie evidence of service, entitled to great weight, and not overcome by affidavits showing only lack of recollection, or upon information and belief; it can only be overcome by clear, unequivocal, direct, specific and detailed facts amounting to convincing proof that service was not made. (23 Cyc. 954; C. S., sec. 3598; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; 32 Cyc. 516; People v. Dodge, 104 Cal. 487, 38 P. 203; Northwestern etc. Bank v. Ridpath, 29 Wash. 687, 70 P. 139; Crawford v. Gibson (Tex. Civ.), 203 S.W. 375; Murrer v. Security Co., 131 Ind. 35, 30 N.E. 879; Osman v. Wisted, 78 Minn. 295, 80 N.W. 1127; Marin v. Potter, 15 N.D. 284, 107 N.W. 970; Burton v. Cooley, 22 S.D. 515, 118 N.W. 1028; Arapahoe State Bank v. Houser, 162 Wis. 80, 155 N.W. 906; Lake Drainage Commrs. v. Spencer, 174 N.C. 36, 93 S.E. 435; Limburger v. Engle (Tex. Civ.), 47 S.W. 683.)

Where it appears that defendant city failed to appear in an action through forgetfulness of the mayor, upon whom service of summons was made, the court will not vacate a judgment by default, set aside the default and permit answer. (Nelson v. McGoldrick Lumber Co., 30 Idaho 451, 165 P. 1125; Humphreys v. Idaho Gold Mines Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Sioux City Vinegar etc. Co. v. Boddy, 108 Iowa 538, 79 N.W. 350; Osman v. Wisted, 78 Minn. 295, 80 N.W. 1127; Missouri K. & T. Ry. Co. v. Ellis, 53 Okla. 264, 156 P. 226; Morris v. Liverpool etc. Co., 131 N.C. 212, 42 S.E. 577; Callahan Const. Co. v. Williams, 160 Ky. 814, 170 S.W. 203; Lovell v. Willis, 46 Mont. 581, 129 P. 1052, 43 L. R. A., N. S., 930; Haggin v. Lorenz, 13 Mont. 406, 34 P. 607; Nye v. Socher, 92 Wis. 40, 65 N.W. 854; Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25; Wood v. Cobe, 80 Kan. 496, 103 P. 101; Warner v. Conant, 24 Vt. 351, 58 Am. Dec. 178; Cullum v. Casey, 1 Ala. 351.)

J. M. Lampert, E. P. Barnes and C. S. Hunter, for Respondent.

A finding that failure to appear and answer was due to mistake, surprise and excusable neglect, and such finding being in favor of a trial on the merits, should not be disturbed where there is any evidence presented tending to support the order. (Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan, etc., v. Smith, 12 Idaho 94, 85 P. 1084; Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Melde v. Reynolds, 129 Cal. 308, 61 P. 932; Nicoll v. Weldon, 130 Cal. 666, 63 P. 63; Grady v. Donahoo, 108 Cal. 211, 41 P. 41; Citizens' Bank v. Branden, 19 N.D. 489, 126 N.W. 102, 27 L. R. A., N. S., 858.)

An application to open a default is addressed to the sound legal discretion of the trial court and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion; in determining the question of discretion, the power of the court should be freely and liberally exercised, under the statute, to mold and direct its proceedings, so as to dispose of cases upon their substantial merits. (Pittock v. Pittock, 15 Idaho 47, 96 P. 212; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Miller v. Carr, 116 Cal. 378, 58 Am. St. 180, 48 P. 324; Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65.)

It is better, as a general rule, that the doubt be resolved in favor of the applicant to set aside a judgment in order to secure a trial upon its merits. (Watson v. San Francisco & H. B. R. R. Co., 41 Cal. 17; Grady v. Donahoo, 108 Cal. 211, 41 P. 41.)

BUDGE, C. J. Dunn and William A. Lee, JJ., concur.

OPINION

BUDGE, C. J.

On August 13, 1920, appellant filed its complaint praying for judgment against respondent for $ 1,426.19, together with interest thereon. Summons was duly issued on the same date and delivered to the sheriff of Ada county for service. The sheriff's return shows that on August 17, 1920, he made personal service of a copy of the summons and complaint on Ernest G. Eagleson, mayor of Boise City, at Boise. The return was filed on August 19, 1920, and was filled in by one Swormstedt, a deputy sheriff, under the direction of the sheriff. No appearance having been made by respondent, its default was entered on September 8, 1920, and on September 10, 1920, judgment as prayed for was rendered, entered and filed. On September 30, 1920, the judgment was presented to the respondent for payment. On March 8, 1921, respondent served and filed a motion to set aside the judgment and open the default and tendered its answer. In support of its motion respondent filed the affidavits of Mayor Eagleson, Catharine Bartlett, Margaret Vernon and E. P. Barnes. On March 25, 1921, appellant, in resisting the motion, filed affidavits of the sheriff and his deputy. On April 21, 1921, a second affidavit, made by the mayor, was filed in contradiction to the affidavit of the sheriff. On May 13, 1921, an alleged amended motion was filed in behalf of respondent. Upon the record thus made and submitted the court set aside the judgment and vacated the default. From the order this appeal is taken.

There are numerous specifications of error. However, only one question is presented, namely, did the trial court abuse its discretion in setting aside the judgment, vacating the default and in permitting respondent to file its answer? This brings before us for review the showing made in support of and in opposition to the motion. This proceeding is based on the provisions of C. S., sec. 6726, which provides, inter alia:

"The court may . . . . relieve a party . . . . from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and whenever, for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order or proceeding complained of was taken, the court, or the judge thereof in vacation, may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. "

The sheriff's return is attacked upon the ground that the return was not filled in by the sheriff but by his deputy. Where the service is made in fact by the sheriff himself, it is sufficient that the return be made out by a deputy under his direction. (Goddard v. Harbour, 56 Kan. 744, 44 P. 1055.) The sheriff's return is prima facie evidence of service and can only be overcome by clear unequivocal and convincing proof that the service was not made. The service is not only supported by the sheriff's return but by his affidavit wherein he sets out in detail the time, place and circumstances of the service. Among other things he states in his affidavit that on the morning of August 16, 1920, he had a telephone conversation with the mayor wherein he informed him that he wanted to serve summons and complaint upon him in an action brought against Boise City by appellant; that the mayor stated that he would be in his office and that it would be all right for him to come there and make the service upon him; that he immediately went to the mayor's office but was unable to see him and make the service. On the morning of August 17, 1920, he went to the mayor's office again and there met the mayor and informed him that he had a summons and copy of the complaint in the case of Boise Valley Traction Company v. Boise City and that he thereupon delivered such papers personally to the mayor. To rebut the sheriff's return and affidavit, Mayor Eagleson, among other things, states in his affidavit that he "is thoroughly convinced and believes that no personal service...