Bowen v. Webb
| Decision Date | 19 March 1906 |
| Citation | 34 Mont. 61 |
| Parties | BOWEN v. WEBB. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Carbon County; Frank Henry, Judge.
Action by Ellen Bowen against Samuel Webb. From a judgment denying a motion to set aside a default judgment in favor of plaintiff and permit defendant to file a demurrer to the complaint, he appeals. Affirmed.
In this case there is an appeal to this court from a judgment by default rendered in the district court of Carbon county on May 8, 1905, and an attempted appeal from an order of the district court refusing to set aside the default, which order was made on February 21, 1905. This action was commenced on January 21, 1904. Service of summons was made by delivering a copy thereof, together with a copy of the complaint, to the defendant, personally, on January 22, 1904. On February 15th following, the defendant having failed to make any appearance in the case, on application of counsel for plaintiff, the clerk of the district court entered the default of the defendant, and thereafter plaintiff made proof, and judgment was rendered and entered in her favor according to the prayer of her complaint. On February 15th, after the default, and before judgment had been entered, defendant's attorney filed a motion to set aside the default and permit him to file a demurrer to the complaint. This motion recites that it is made upon the papers in the case and the affidavit filed with it. The motion was accompanied by an affidavit of the attorney for the defendant, to the effect that he had been employed on January 28th to make appearance for defendant in this case; “that by reason of mistake and inadvertence as to the time within which said appearance must be made, affiant failed to make such appearance by demurrer or answer.” On February 16th the defendant served upon the attorney for plaintiff a proposed answer, which had been offered for filing on February 15th, after the default had been entered; but no reference whatever is made to this proposed answer in any of the defendant's moving papers. On March 1, 1904, counsel for defendant filed another affidavit of himself in support of the defendant's motion to set aside the default. This second affidavit recites that the default was entered by the clerk when court was in session, contrary to a rule of that court; but the rule is not set forth. This affidavit alleges that the failure of the defendant to appear within the time allowed by law “was occasioned by and due to an unusual amount of business engagements, calling affiant out of his office a great deal during said time after the case had been brought to him and his services had been engaged by the defendant, and prior to the first day of the regular February term of court; and that by reason of the consequent confusion of his business affiant mistook the day upon which he must file appearance of the defendant in the case.” The bill of exceptions recites that the motion to set aside the default came on for hearing before the court on February 21, 1905, on the complaint, motion, and affidavits, and was overruled.
W. F. Meyer, for appellant.
Geo. W. Pierson, for respondent.
HOLLOWAY, J., after stating the facts, delivered the opinion of the court.
1. The order, made before final judgment, refusing to set aside the default is not an appealable order. Section 1722 of the Code of Civil Procedure, as amended by an act of the Sixth Legislative Assembly. Sess. Laws, 1899, p. 146.
2. This court does not take judicial notice of the provisions of rules of district courts. Code Civ. Proc. § 3150.
3. The granting or refusing to grant a motion to set aside a default is within the sound legal discretion of the trial court, and the appellant here assumes the burden of showing facts which made the denial of his motion a manifest abuse of that discretion. Briscoe v. McCaffery, 8 Mont. 336, 20 Pac. 691;Blaine v. Briscoe, 16 Mont. 582, 41 Pac. 1002;Morse v. Callantine, 19 Mont. 87, 47 Pac. 635;Eakins v. Kemper, 21 Mont. 160, 53 Pac. 310; 6 Ency. Plead. & Prac. 163, and cases cited.
4. In order to justify the district court in granting the...
To continue reading
Request your trial
- Donlan v. Thompson Falls Copper & Milling Co.
-
Bullard v. Zimmerman
...rendition of judgment. An order, made before final judgment, refusing to set aside a default, is not an appealable order. Bowen v. Webb, 34 Mont. 61, 85 P. 739; section 9731, Rev. Codes 1921. The case here cited was based on a statute identical, in that particular, with the statute now in f......
-
Holen v. Phelps
...59 Mont. 92, 195 P. 833), and its action will only be reversed on appeal on a showing of manifest abuse of that discretion (Bowen v. Webb, 34 Mont. 61, 85 P. 739; Swilling v. Cottonwood Land Co., 44 Mont. 339, 119 P. 'However, since 'it is the policy of the law to have every litigated case ......
-
Donlan v. Thompson Falls Copper & Milling Co.
... ... with his motion and affidavit a copy of his proposed ... answer." See, also, Bowen v. Webb, 34 Mont. 61, ... 85 P. 739 ... The ... order of the district court of Sanders ... ...