City of Helena v. Brulo

• Decision Date: 04 March 1895
• Citation: 39 P. 456,15 Mont. 429
• Parties: CITY OF HELENA v. BRULO et al. [1]
• Court: Montana Supreme Court

39 P. 456

15 Mont. 429

CITY OF HELENA v. BRULO et al. ^[1]

Supreme Court of Montana

March 4, 1895

Appeal from district court, Lewis and Clarke county.

Action by the city of Helena against Emil Brulo and others. From a default judgment for plaintiff, and from an order denying a motion to set aside the same, defendants appeal. Affirmed.

The plaintiff pleads by its complaint filed in the district court that it is a municipal corporation; that on February 8, 1892 in an action brought by Richard Lockey against J. B. Walker as city treasurer of the city of Helena, an injunction duly issued out of the district court was served on said Walker restraining him from selling the property of said Lockey for nonpayment of his taxes for the year 1891; that, upon the issuing of said injunction, the defendants gave an undertaking, required by law, copy of which was made part of the complaint; that such proceedings were had in such action that it was finally decided by the court, and thereby adjudged that said Lockey was not entitled to said injunction (the judgment roll is by reference made a part of the complaint); that while the injunction bond was given to Walker, as city treasurer, to indemnify and save him harmless from all damages that he might sustain by reason of said injunction, the said Walker was merely a nominal party to said action, and the real party in interest in that and in this action is the city of Helena, this plaintiff, and that the damages sustained were sustained by the city of Helena that the damages sustained by the plaintiff by reason of said injunction amounted to the sum of $300, which sum the plaintiff paid for counsel to assist the then city attorney in procuring the dissolution of said injunction; that no part thereof has been paid, although payment thereof has been demanded. Judgment for $300, together with interest, was prayed for. The injunction bond was in the usual form, and signed by the defendants. A general demurrer was interposed and overruled on the 20th of February, 1893. On March 2, 1893, judgment by default was entered in favor of plaintiff, and against the defendants, for the sum of $325.16, with interest. March 3, 1893, the defendants moved to set aside the default and judgment, upon the ground of excusable neglect. The substance of the affidavit to support said motion was that Mr. Bullard, who was the attorney for defendants, was not advised as to the date upon which the demurrer was submitted to the court, and was not advised as to any order in reference thereto until after default and judgment, but supposed that said demurrer was still pending; that it was through his inadvertence and want of information that the demurrer was submitted and default and judgment entered. An answer was tendered with the motion. The court overruled the motion to set aside the default and judgment. From the judgment, and from the order overruling the application of the defendants to set aside and vacate the judgment by default, an appeal is taken.

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