Brainard v. Coeur D'Alene Antimony Mining Co.

Decision Date02 August 1922
Citation35 Idaho 742,208 P. 855
CourtIdaho Supreme Court


1. Legislation which affects only the remedy or the procedure embraces pending actions unless it contains words of exclusion.

2. A default judgment does not become final until the expiration of the time allowed for setting it aside.

3. An amendatory statute in regard to setting aside default judgments applies to a motion to set aside such a judgment entered before the statute goes into effect, when the motion is made after such statute goes into effect, and within the time allowed for such a motion by the statute in force at the time the judgment was entered.

4. Where an attorney, who has been usually retained by a defendant, being unable to represent him in a certain case agrees to retain another attorney for that purpose, and fails to do so, resulting in a default judgment, such judgment is taken against the defendant through the neglect or failure of the attorney within the meaning of C. S., sec. 6726, as amended by Sess. Laws 1921, chap. 235.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert A. Featherstone, Judge.

Action on promissory notes. Appeal from default judgment and order denying motion to set it aside. Reversed.

Reversed and remanded, with directions.

H. J Hull, for Appellants.

Where a genuine mistake arises or exists between attorneys as to the extent, character or nature of their employment or retainer, it constitutes mistake, inadvertence, surprise and excusable neglect. (Barto v. Sioux City Electric Co., 119 Iowa 179, 93 N.W. 268, Buena Vista v. Iowa Falls etc. Ry. Co., 49 Iowa 657, 658; Seawell (Chatham Lumber Co.) v. Parsons Lumber Co., 172 N.C. 320, 90 S.E. 241; Cline v. Duffy, 20 N.D. 525, 129 N.W. 75; Rosen v. Galizio, 184 Ky. 367, 212 S.W. 104; Reilley v. Kinkead, 181 Iowa 615, 165 N.W. 80; Combination Fountain Co. v. Rogers (Tex. Civ.), 186 S.W. 407; De McKinley v. Tuttle, 34 Cal. 235.)

When, because of a mistake, misunderstanding or excusable neglect, an attorney withdraws, leaving his client unprotected, the court will set aside the judgment. (Utah etc. Savings Bank v. Trumbo, 17 Utah 198, 53 P. 1033; Nichells v. Nichells, 5 N.D. 125, 57 Am. St. 540, 64 N.W. 73, 33 L. R. A. 515; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. 641, 36 P. 759; Adams v. Rathbun, 14 S.D. 552, 86 N.W. 629.)

Sec. 6726, C. S., as amended by chap. 235, 1921 Sess. Laws, requires the court, as a matter of law, to vacate and set aside the judgment.

The amendment does not tend to destroy or impair a vested right. It gives no rights where none existed, and imposes no previously unknown liabilities. It only affects the remedy or procedure as applied to such a state of facts, to wit: a judgment obtained by default. (Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Bensley v. Ellis, 39 Cal. 309, 313, In re Potter, 106 Misc. 113, 175 N.Y.S. 598; Laird v. Carton, 196 N.Y. 169, 89 N.E. 822, 25 L. R. A., N. S., 189; Davidoff v. Chipornoi, 101 Misc. 291, 166 N.Y.S. 996; Judkins v. Taffe, 21 Ore. 89, 27 P. 221; Phoenix Ins. Co. v. Shearman, 17 Tex. Civ. 456, 43 S.W. 930; Converse v. Burrows etc., 2 Minn. 229; Fisher v. Hervey, 6 Colo. 16; McManus v. Park (Mo. App.), 229 S.W. 211; Clugston v. Rogers, 203 Mich. 339, 169 N.W. 9; Waddill v. Masten, 172 N.C. 582, 90 S.E. 694; Kingan & Co. v. Ossam (Ind. App.), 121 N.E. 289; People v. City of Syracuse, 128 A.D. 702, 113 N.Y.S. 707.)

There is no showing of neglect on the part of the appellants individually; they acted as ordinary prudent men would have acted under similar circumstances when attending to important business, and had a right to rely upon their attorneys to take care of matters in court. (Reilley v. Kinkead, 81 Iowa 615, 165 N.W. 80; Simpkins v. Simpkins, supra.)

Jas. A. Wayne and H. E. Worstell, for Respondent.

The determination of a motion to vacate a default judgment is within the sound judicial discretion of the trial judge; appellate courts are always reluctant to reverse the decision of the trial court on such a motion, and will never do so unless there has been a clear abuse of discretion. (Western Loan etc. Co. v. Smith, 12 Idaho 94, 85 P. 1084; Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Green v. Kandle, 20 Idaho 190, 118 P. 90; Harr v. Kight, 18 Idaho 53, 108 P. 539; Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Richards v. Richards, 24 Idaho 87, 132 P. 576; In re Pittock's Estate, 15 Idaho 47, 96 P. 212; Domer v. Stone, 27 Idaho 279, 149 P. 505; Kynaston v. Thorpe, 29 Idaho 302, 158 P. 790; Beck v. Lavin, 15 Idaho 363, 97 P. 1028; Armstrong v. Hartford Fire Ins. Co., 33 Idaho 303, 195 P. 301.)

Where several attorneys are associated together in a litigation, the neglect of one is chargeable to all, and the neglect of such attorney is also chargeable to the client. (Nelson v. McGoldrick Lumber Co., 30 Idaho 451, 165 P. 1125.)

A judgment in this state is property, of which the owner must not be deprived without due process of law, and the mistake or neglect, to be sufficient to justify the vacation of a judgment, must be such as may be expected on the part of a reasonably prudent person situated as was the party against whom the judgment was entered. (Ticknor v. McGinnis, 33 Idaho 308-311, 193 P. 850.)

Chap. 235, Laws 1921, amending sec. 6726, C. S., has no application in this case, (1) because the default in this case was not of the attorney, but was the default of the litigant; and (2) such law did not become effective until after the judgment in this cause was entered. Retrospective effect will not be given to a statute unless it appears that the statute was intended to have such effect. (Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81; Bellevue State Bank v. Lilya, ante, p. 270, 205 P. 893.)

MCCARTHY, J. Rice, C. J., and Budge, Dunn and Lee, JJ., concur.



This is an appeal from a default judgment and order denying a motion to vacate it. The affidavits submitted in support of the motion, which were not contradicted, show that appellant Jolley, president of the defendant mining company, upon being served with the summons and complaint, consulted with one Reinking, then practicing law at Wallace, Idaho, relative to the defense of the case. Reinking advised said appellant that he was going to Boise, Idaho, to practice, and would be unable to give the case attention, and that it would be wise for appellants to employ counsel in Spokane, and also R. T. Morgan, of Kellogg, Idaho. Reinking told Jolley that he would retain Morgan as co-counsel for appellants and Jolley authorized him to do so. Thereafter Reinking advised Jolley that he had retained Morgan. Jolley employed E. H. Maloy, an attorney of Spokane, Wash., to try the case, but it was understood that Morgan would attend to the proceedings in the state of Idaho prior to the drawing of the answer and the trial. Reinking took the matter up with Morgan and some discussion occurred between them as to the amount of the fee. Reinking understood that he had employed Morgan, and agreed to pay the fee demanded and so reported to Jolley. Morgan understood the matter was not definitely settled, and that Reinking would communicate with him again. In the meantime, Morgan filed a demurrer. Upon this being overruled, some 60 days having elapsed and not having heard again from Reinking or appellants, he supposed that they did not desire his services, and withdrew from the case, failing to file an answer for appellants or notify them to have one filed. This resulted in the entry of a default judgment. Judgment was entered on April 27, 1921. Motion to set it aside was made May 9th, and was denied.

The statute in force at the time the judgment was rendered provided that the court might relieve a party or his legal representative from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect, and this relief might be applied for during the term or within six months after its adjournment. C. S., sec. 6726. Chap. 235, L. 1921, amended this so as to provide: "Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, in vacation, shall, upon application filed within the time above limited, set aside such judgment, order or proceeding and may, in its discretion, require the attorney guilty of such failure or neglect to pay the costs or expenses actually and necessarily occasioned to the opposite party by such failure or neglect, and may, in its discretion, also impose upon such attorney a penalty of not exceeding $ 100."

The time to apply for this relief was not changed. The act went into effect May 4, 1921. Judgment was entered on April 27 1921. The motion to set it aside was made May 9th. Appellants contend that the act of 1921 applies to this case, and respondents contend it does not. Legislation which affects only the remedy or the procedure embraces pending actions unless it contains words of exclusion. (Boise Irr. etc. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Bensley v. Ellis, 39 Cal. 309; Judkins v. Taffe, 21 Ore. 89, 27 P. 221; McManus v. Park (Mo. App.), 287 Mo. 109, 229 S.W. 211; Waddill v. Masten, 172 N.C. 582, 90 S.E. 694; Laird v. Carton...

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