Commonwealth Trust Co. of Pittsburgh v. Lorain

• Decision Date: 16 March 1927
• Citation: 43 Idaho 784,255 P. 909
• Parties: COMMONWEALTH TRUST COMPANY OF PITTSBURGH, a Corporation, Trustee, Appellant, v. H. B. LORAIN, JENNIE DOE LORAIN and E. E. BABCOCK, Respondents
• Court: Idaho Supreme Court

255 P. 909

43 Idaho 784

COMMONWEALTH TRUST COMPANY OF PITTSBURGH, a Corporation, Trustee, Appellant, v. H. B. LORAIN, JENNIE DOE LORAIN and E. E. BABCOCK, Respondents

Supreme Court of Idaho

March 16, 1927

JUDGMENT-MOTION TO VACATE DEFAULT-TIME-APPEAL AND ERROR-APPEALABLE ORDER-JURISDICTION.

1. Period prescribed by C. S., sec. 6726, requiring that applications to set aside default be made within six months after adjournment of term, dates from entry of default and not from entry of judgment.

2. Where motion to set aside default judgment was not made until about nine months after entry of default and more than six months after adjournment of term, trial court had no power to set aside judgment, under C. S., sec. 6726.

3. Appeal may be taken from order setting aside judgment.

4. Under C. S., sec. 6879, relative to certain matters deemed excepted to, it is unnecessary that exception be taken to order setting aside judgment in order to authorize review.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Appeal from order permitting Babcock to be made a party defendant and vacating judgment, decree and default. Order set aside and held for naught.

Judgment set aside and costs awarded to appellant. Petition for rehearing denied.

Richards & Haga, for Appellant.

A judgment or decree of a court of general jurisdiction can only be vacated or set aside by that court on motion for a new trial in accordance with C. S., secs. 6887-6894, or on motion to vacate in accordance with sec. 6726 as amended by Laws 1921, chap. 235, p. 526, or upon motion independent of the statute in cases where the judgment is void. (Armitage v. Horseshoe Bend Co., 35 Idaho 179, 204 P. 1073.)

Application to vacate a judgment, order or proceeding under the Idaho statute, where service has been made personally within the state, must be made within a reasonable time which cannot exceed six months after the adjournment of the term at which the judgment was entered or the proceeding taken. (C. S sec. 6726; Laws 1921, chap. 235, p. 526; Miller v Prout, 32 Idaho 728, 187 P. 948; Nixon v Tongren, 33 Idaho 287, 193 P. 731.)

A default is a "proceeding taken against" the party in default within the meaning of C. S., sec. 6726, and similar statutes, and the relief must be applied for within the time limited by such statute. (Sec. 473, Cal. Code Civ. Proc.; 14 Cal. Jur., Judgments, pp. 891, 1068-1099; Title Ins. & Trust Co. v. King Land etc. Co., 162 Cal. 44, 120 P. 1066; Burns v. Superior Court, 140 Cal. 5, 73 P. 597; Stonesifer v. Kilburn, 94 Cal. 33, 29 P. 332.)

The entry of default fixes the beginning of the period within which the motion to vacate the default and the judgment should be made, and if this period has expired, neither the default nor the judgment will be vacated because it would be vain and futile for the court to set aside the judgment when the default cannot be vacated. (Mader v. Christie, 52 Cal.App. 138, 198 P. 45; McLain v. Llewellyn Iron Works, 56 Cal.App. 58, 204 P. 869; Hinds v. Superior Court, 65 Cal.App. 223, 223 P. 422; Keown v. Trudo, 71 Cal.App. 155, 234 P. 910; Smith v. McCormick, 52 Mont. 324, 157 P. 1010.)

An order vacating a default judgment is a special order made after final judgment and appealable. (C. S., sec. 7152; Shumake v. Shumake, 17 Idaho 645, 107 P. 42.)

Turner K. Hackman, for Respondent Babcock.

"An order setting aside a default entered by the clerk is not an appealable order." (Omaha Structural Steel Works v. Lemon, 30 Idaho 363, 164 P. 1011.)

"It is not to be presumed that the legislature intended to abrogate or modify a rule of the common law by the enactment of a statute upon the same subject; it is rather to be presumed that no change in the common law was intended, unless the language employed clearly indicates such an intention." (Cox v. St. Anthony Bank & Trust Co., 41 Idaho 776, 242 P. 785.)

"An application to open a default is addressed to the sound legal discretion of the court, and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion." (Pittock v. Buck, 15 Idaho 47, 96 P. 212; Sessions v. Walker, 34 Idaho 362, 200 P. 138; Bank of Italy v. Burns, 38 Nev. 398, 150 P. 249; Sherman v. Southern P. Co., 31 Nev. 285, 102 P. 257.)

JOHNSON, Commissioner. Varian and Brinck, CC., Wm. E. Lee, C. J., and Budge and Givens, JJ., concurring.

OPINION

JOHNSON, Commissioner.

This action was commenced in the district court for Twin Falls county on February 2, 1920, against defendants H. B. Lorain and Jennie Doe Lorain, seeking foreclosure of two water contracts. On June 25, 1920, the Lorains were personally served with summons; on June 18, 1923, a default was entered against each of them, and the term was adjourned on August 31, 1923; on January 23, 1924, proof was submitted; and on February 5, 1924, a decree was entered in favor of the plaintiff and order of sale issued. Thereafter, and on March 10, 1924, one E. E. Babcock, who had purchased the property from the Lorains after the commencement of the action, served a motion to vacate the default, and filed the same on March 14, 1924.

The only question necessary to discuss and which is decisive of this case is: Does the period prescribed by the statute within which the motion to vacate should be made date from the entry of default or from the entry of judgment?

Code Civ. Proc. Cal., sec. 473, is identical with our C. S., sec. 6726, or at least as it existed prior to the amendment, covering the act of attorneys, and the supreme court of California in passing on the question in Title Ins. & T. Co. v. King Land etc. Co., 162 Cal. 44, 120 P. 1066, held, as appears from the syllabus in the California report, as follows:

"The court is without power, under section 473 of the Code of Civil Procedure, to set aside the defaults of defendants who have been personally served with summons, unless the application therefor is made within a time not exceeding six months after the default was entered.

"The taking and entering of a default by the clerk or by the court, at the instance of the adverse party, is a 'proceeding taken against' the party in default, within the meaning of section 473 of the Code of Civil Procedure, and its entry, and not that of the judgment, fixes the beginning of the period of six months within which a motion to set aside the default must be made.

"Such a default cuts off the defendant from making any further opposition or objection to the relief which plaintiff's complaint shows he is entitled to demand. He cannot thereafter, nor until the default is set aside in a proper proceeding, file pleadings, or move for a new trial, or demand notice of subsequent proceedings."

See, also, Mader v. Christie, 52 Cal.App. 138, 198 P. 45; McLain v. Llewellyn Iron Works, 56 Cal.App. 58, 204 P. 869; Hinds v. Superior Court, 65 Cal.App. 223, 223 P. 422; Keown v. Trudo, 71 Cal.App. 155, 234 P. 910.

As far as the question stated is concerned, the Montana statute is the same as ours, and the supreme court of that state in Smith v. McCormick, 52 Mont. 324, 157 P. 1010, held that the time begins to run from the entry of default.

The setting aside of the...