Cleek v. Virginia Gold Mining and Milling Company

• Decision Date: 31 January 1942
• Docket Number: 6950
• Parties: E. V. CLEEK, Appellant, v. VIRGINIA GOLD MINING AND MILLING COMPANY, a corporation, Respondent
• Court: Idaho Supreme Court

122 P.2d 232

63 Idaho 445

E. V. CLEEK, Appellant, v. VIRGINIA GOLD MINING AND MILLING COMPANY, a corporation, Respondent

No. 6950

Supreme Court of Idaho

January 31, 1942

Rehearing denied March 2, 1942

ATTORNEYS AT LAW-FOREIGN ATTORNEYS-SIGNATURE TO PLEADINGS-DEFAULT JUDGMENTS-MOTIONS TO VACATE-AFFIDAVITS-JUDICIAL DISCRETION-CORPORATIONS-OFFICERS OF-NEGLIGENCE.

1. The privilege of appearing as counsel in Idaho courts is granted to nonresident attorneys not as a right, but as a courtesy.

2. Granting or refusing to grant a motion to vacate a judgment and set aside a default which has been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect, is a matter resting largely within the sound judicial discretion of the trial judge.

3. The action of trial judge in granting or refusing to grant motion to vacate judgment and set aside default which has been taken and entered through mistake, inadvertence, surprise or excusable neglect will not be reversed, except in cases where the trial court's discretion has been abused.

4. Where motion to vacate judgment and set aside default is heard on affidavit's and files of the case, so that the Supreme Court has all of the showing before it that was before the trial judge, the Supreme Court, being in as good position to consider the matter as was the trial court, will examine the record and be governed thereby.

5. In granting or refusing to grant motion to vacate judgment and set aside default which has been permitted to be entered through mistake, inadvertence, surprise or excusable neglect the trial court must bear in mind fact that a judgment is "property" of which the owner must not be deprived without due process of law and the mistake or neglect to be sufficient 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.

6. Affidavits offered on behalf of defendant corporation in support of motion to vacate judgment against it and set aside default, and counter affidavits submitted by plaintiff, did not disclose facts which would justify conclusion that corporation's failure to have a pleading or other appearance on its behalf signed, served and filed by an attorney at law qualified and practiced to act as such prior to default, was due to anything other than inexcusable negligence of officers of the corporation, and hence the trial court abused its discretion in sustaining corporation's motion.

7. The codal provision relating to the setting aside of a judgment entered against a party through neglect of an "attorney" of such party to file or serve any paper within time limited therefor refers to neglect of an attorney having authority and owing duty to represent the litigant in the courts of Idaho, and does not include acts of a foreign attorney who is forbidden by law to practice in Idaho. (I. C A. sec. 5-905.)

8. Where foreign corporation had knowledge of death of its resident attorney in ample time to procure counsel to represent it before its default was entered, and the default was entered after demurrer and demand for change of place for trial which were filed by a Utah attorney were stricken because not signed by an attorney admitted to practice in Idaho, and failure to procure Idaho counsel was due to gross negligence of corporation's officers, the corporation was not a "party otherwise without default," and was therefore not entitled to have the judgment set aside under codal provision relating thereto. (I. C. A. sec. 5-905.)

9. Where foreign corporation's officers had knowledge of death of corporation's attorney in ample time prior to default to have procured another Idaho attorney to represent it, the corporation was not entitled to protection under codal provision stating that when a litigant's attorney dies the adverse party must before any further proceedings can be had by written notice require such litigant to appoint another attorney or to appear in person. (I. C. A. sec 3-206.)

The foregoing syllabus is by West Publishing Company, that following by author of opinion.

I. All pleadings filed in the district courts or shall be signed by an attorney who is a resident of the state.

II. The privilege of appearing as counsel in the courts of Idaho is granted to nonresident attorneys, not as a right, but as a courtesy.

III. Where a motion to vacate a judgment and set aside a default is based on affidavits and files of the case, the supreme court, being in as good position to consider the matter as was the judge who ruled on the motion, will examine the record and be governed thereby.

IV. While granting or refusing to grant a motion to vacate and set aside a judgment and default, where right to relief is based on the claim that they have been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect, rests, largely in the discretion of the trial judge, the discretion referred to is a sound, judicial, reviewable discretion, in the exercise of which courts must bear in mind a judgment is property, of which the owner must not be deprived without due process of law, and the mistake or neglect, to be sufficient, must be such as may be expected of a reasonably prudent person situated as was the party against whom the judgment was entered.

V. I. C. A., 5-905, which provides for relieving a party litigant from the consequences of the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, refers to an attorney licensed to practice law in Idaho, and not to a foreign attorney who is forbidden to practice in this state.

VI. That statutory provision is not available to a corporation which permits a default judgment to be taken against it, due to the inexcusable negligence of its officers.

VII. Section 3-206, which requires, in case of the death of the attorney of a litigant, that the adverse party must, before any further proceedings be had, by written notice, require such litigant to appoint another attorney, or appear in person, has no application in a case where the officers of a litigant corporation had knowledge of the death of its attorney.

Rehearing denied March 2, 1942.

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

E. V. Cleek, plaintiff, recovered judgment by default against Virginia Gold Mining and Milling Company, a corporation, defendant. From an order vacating and setting aside the judgment and default, plaintiff appeals. Reversed.

Order reversed. Costs awarded to appellant.

Clarence T. Ward, for Appellant.

A default cannot be opened where entered through carelessness or lack of attention. A clear showing excusing the default must be made; and the order of the trial court will not be reversed unless it clearly appears such court abused its discretion." (Holland Bank v. Lieuallan, 6 Idaho 127; Pease v. Kootenai Co., 7 Idaho, 731; Hozleman v. Henneberry, 11 Idaho 428; Weston L. & So. Co. v. Smith, 12 Idaho 94; Pittock v. Pittock, 15 Idaho 47.)

This court has held that the mistake, inadvertence or excusable neglect contemplated by the statute is such as might be expected on the part of a reasonably prudent person under the circumstances, and that the statute does not excuse utter indifference and inattention to business." (Kynason v. Thorpe, 29 Idaho 302; Valley State Bank v. Post Falls, etc. Co., 29 Idaho 587; Green v. Craney, 32 Idaho 338; Boise Valley Traction Co. v. Boise City, supra, p. 20; Atwood v. Northern Pac. Ry. Co., 37 Idaho 554; Ticknor v. McGinnis, 33 Idaho 308.)

Z. Reed Millar, for Respondent.

A void judgment, the invalidity of which appears on the face of the judgment roll, may be attacked at any time regardless of Statute of Limitation. (Savage v. Stokes, 54 Idaho 109, 28 P. 2, 900; Hanson v. Iogers, 54 Idaho 360, 322 P. 2, 126; Welch v. Morris, 49 Idaho 781, 291 P. 1048.)

MORGAN, J. Givens, C.J., and Holden, J., concur. Ailshie, J., dissents. Budge, J., sat at the hearing, did not participate in the decision.

OPINION

MORGAN, J.

This action was commenced July 22, 1940, by appellant, against Virginia Gold Mining and Milling Company, a corporation organized and existing under and by virtue of the laws of Idaho, hereinafter called the company, to recover for breach of contract. C. E. Norton was also made a defendant. He was not served with summons, and, on oral argument in this court, it was agreed by counsel for the parties litigant that he is not a party to this appeal and that his name should be stricken from the title of the case. October 11, 1940, the company filed a demurrer to the complaint, at the bottom of which appeared:

"Residence:

707 Utah Sav. & Trust Bldg.

Salt Lake City, Utah

C. E. NORTON

Attorney for the Defendant

VIRGINIA GOLD MINING and MILLING COMPANY

Residence: Salmon, Idaho.

LOT L. FELTHAM

of Counsel

Salmon, Idaho"

On the last mentioned date, the company filed a document entitled "Demand for change of place of trial from Ada County to Lemhi County," wherein it was alleged its principal place of business was in Lemhi County. The name of Mr. Norton appears on the demand as attorney for the company. The name of Mr. Feltham does not appear on it.

November 20, 1940, counsel for appellant filed a motion to strike the demurrer and the demand for change of place of trial from the files, and that default of the defendant be entered. The motion was based on the ground that the demurrer and demand were null and void because neither of them had been signed or filed by an attorney licensed to practice law in Idaho. The motion was supported by affidavits showing that C. E. Norton, whose name was signed to...