Brown v. Weinstein

• Decision Date: 24 December 1909
• Citation: 105 P. 730,40 Mont. 202
• Parties: BROWN v. WEINSTEIN.
• Court: Montana Supreme Court

105 P. 730

40 Mont. 202

BROWN v. WEINSTEIN.

Supreme Court of Montana

December 24, 1909

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by Eva B. Brown against Samuel Weinstein. From an order setting aside a default judgment, plaintiff appeals. Affirmed.

Harry R. Thompson, for appellant.

Walsh and Nolan, for respondent.

SMITH J.

On the 9th day of February, 1907, the plaintiff began an action in the district court of Lewis and Clark county to recover a personal judgment against the defendant for the sum of $350. Summons was issued and returned unserved. On November 17 1908, an alias summons was issued, and personal service was had upon the defendant, who thereupon entered a special appearance by counsel, and moved to quash the service for the reason that the alias summons was issued more than a year after the filing of the complaint. On December 19, 1908, the motion was argued by counsel for both parties before the honorable Thomas C. Bach one of the judges of the district court, and taken under advisement. On December 28, 1908, the motion was overruled. On January 20, 1909, the default of the defendant was entered, and on January 29, 1909, judgment was rendered in favor of the plaintiff for the amount demanded in the complaint. On February 2, 1909, the defendant filed a motion to set aside the default judgment and for permission to answer. This motion was granted, and plaintiff has appealed from the order.

As we understand the record, the only question presented is whether the court below abused its discretion in holding that the defendant had made out a case of excusable neglect on the part of his counsel. In support of the motion the latter, C B. Nolan, Esqr., filed his affidavit, in which he set forth that after the motion to quash the service of summons was argued, and before it was decided, Judge Bach "spoke to affiant, and inquired as to whether or not he would insist upon the motions which were submitted to the judge, being determined by him before going out of office on the first Monday in January, 1909, and suggested in that connection that, as these matters submitted to him involved legal propositions, and as the cases in which the matters were submitted could not finally be determined by him, it was proper that these legal propositions should be submitted to his successor who should finally try the case; that at the time this conversation took place with the said judge there were under consideration by him the motion heretofore referred to, as well as other motions, and from the conversation this affiant believed that all the matters then being considered would remain undetermined, and would again be submitted to the successor of Judge Bach; that affiant was informed for the first time on or about the 28th day of January, 1909, that a default had been entered, and that the motion had been overruled on December 28th; that under the rules of the court notice should be given him or his client that the motion had been overruled, but no such notice was given." The rule of court is as follows: "VIII. It shall be the duty of the clerk within twenty-four hours after any order or decision is made in a...