Collier v. Fitzpatrick

• Decision Date: 22 May 1899
• Citation: 57 P. 181,22 Mont. 553
• Parties: COLLIER v. FITZPATRICK.
• Court: Montana Supreme Court

57 P. 181

22 Mont. 553

COLLIER v. FITZPATRICK.

Supreme Court of Montana

May 22, 1899

Appeal from district court, Deer Lodge county; Theo. Brantly, Judge.

Action brought by Anna Collier against John Fitzpatrick. From a judgment in favor of plaintiff, and from an order refusing to vacate a judgment, defendant appealed. Reversed.

T O'Leary, for appellant.

Sawyer & Walsh, for respondent.

PIGOTT J.

Defendant appeals from a judgment of the district court of Deer Lodge county entered on the 17th day of May, 1898, and also from an order of that court entered May 24, 1898, denying his motion to vacate said judgment. The action was brought to recover possession of certain personal property, together with damages for its detention. The first trial resulted in a judgment for defendant, but upon appeal by plaintiff to this court a new trial was directed of the issue touching the ownership of certain of the property. Collier v Fitzpatrick, 19 Mont. 562, 48 P. 1103. The remittitur was filed by the clerk of the court below on November 22 1897. On May 16, 1898, in the absence of defendant and his counsel, the court tried the case without a jury, and found for the plaintiff; and on the day following judgment was entered accordingly. On May 18, 1898, one day after the entry of judgment, defendant served notice of motion to set aside the judgment on the ground that he had no notice of the setting of the action for trial, and upon the further ground that the judgment was taken against him through his mistake inadvertence, surprise, and excusable neglect. On May 23 1898, the court heard the motion, and on May 24th denied it. The material facts shown are the following: On April 8, 1898, the attorneys for the plaintiff procured an order from the district court by which the case was placed upon the trial calendar, and thereafter, about the 30th day of the same month, gave notice to the clerk, in accordance with a rule of court, that plaintiff desired the case noted for a jury trial at the ensuing term, beginning May 2, 1898. The case was placed upon the trial calendar prepared for the use of the court, in which appeared the titles of all causes at issue prior to the first day of the May term. Although this was the only official calendar, the clerk, at the request of the members of the bar, and for their use and convenience, prepared and issued a printed calendar, upon which Collier v. Fitzpatrick did not appear. This printed calendar was not prepared or distributed under any order or rule of court. T. O'Leary, Esq., was the attorney of record for the defendant, and was also city attorney and clerk of Anaconda, the county seat, in which city he resided. He was not present at the calling of the calendar, had not received any notice from the clerk or from any other source that the case had been set for trial, and such setting was wholly unknown to him. At the time the calendar was called and the cases set down for trial, he was engaged, as city clerk, in attendance upon the city council; May 2d being the day on which the council elect assumed office, and the outgoing council accounted to and settled with its successor. B. F. Maiden, Esq., was Mr. O'Leary's partner, and had been since January 1, 1898; but Mr. Maiden was not an attorney in Collier v. Fitzpatrick. At Mr. O'Leary's request, and for the purpose of having the cases in which he or the firm was interested set for trial or otherwise disposed of, Mr. Maiden attended the court, and was present when the calendar was called, and appeared and represented Mr. O'Leary in four cases which were then set for trial. The titles of these four cases were printed in the unofficial calendar issued by the clerk, and this calendar was the one upon which both Mr. O'Leary and Mr. Maiden relied for information touching the cases which were for trial at the May term. Immediately prior to the calling of the calendar on May 2d the judge announced in open court that all causes at issue would be set for trial unless continued. When the case at bar was reached in regular order, it was called by its title, and the court, at the instance of counsel for the plaintiff, set it for trial on May 16th, at 9:30 in the forenoon, and the order to that effect was entered in the journal, and was read and approved the next day in open court. Mr. Maiden made notations on the unofficial printed calendar opposite the titles of the four cases of the dates when they were to be tried. He had no knowledge whatever of Collier v. Fitzpatrick, and had no information that Mr. O'Leary was attorney therein, and the case had never been mentioned in the office of O'Leary & Maiden since...