Cottonwood Sheep Co. v. Murphy, 1842

• Decision Date: 14 May 1935
• Docket Number: 1842
• Citation: 48 Wyo. 250,44 P.2d 1000
• Parties: COTTONWOOD SHEEP COMPANY v. MURPHY
• Court: Wyoming Supreme Court

44 P.2d 1000

48 Wyo. 250

COTTONWOOD SHEEP COMPANY v. MURPHY

No. 1842

Supreme Court of Wyoming

May 14, 1935

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

Suit by the Cottonwood Sheep Company against Patrick Murphy. Default order and judgment for plaintiff, and to review an order vacating the default order and judgment, plaintiff brings error.

Modified and Affirmed.

For the plaintiff in error there was a brief by E. E. Enterline Madge Enterline and Casey and McNally, all of Casper, and oral argument by Messrs. Enterline and McNally.

The statutes relied upon for reversal of the orders complained of are Secs. 89-2301, 2305, 2306 and 2307, R. S. 1931. The ground upon which the defendant relied was fraud. The trial court refused plaintiff's request to make a special finding. Fraud must be distinctly alleged and proven. Kahn v. Traders Ins. Co., 4 Wyo. 419; Bank v Ford, 30 Wyo. 110; Williams v. Yocum, 37 Wyo 432; Brown v. Bank, 38 Wyo. 469. Fraud will not be imputed when the circumstances may consist of honesty and purity of intention. Patterson v. Lee-Clarke-Andreesen Company, 7 Wyo. 401. There was a lack of diligence. Boulter v. Cook, 32 Wyo. 461. The action of the trial court in vacating and setting aside the order and judgment, and permitting the filing of an answer was reversible error. Secs. 89-2306 and 2307. 1 Freeman on Judgments, Sec. 300; 34 C. J. 583; Huntington & McIntyre v. Finch Company, 3 Ohio St. (N. S.) 445; Watson v. Paine, 25 Ohio St. 340; Braden v. Hoffman, (Ohio) 22 N.E. 930; Follett v. Alexander, 50 N.E. 720; Newman v. Desnoyers, 60 N.E. 572; Lee v. Benedict, 92 N.E. 492. The rule requires defendant to show a valid defense and forthwith set it up before an order is made setting the judgment aside. City of Cincinnati v. Archiable, 21 Oh. Cir. Ct. Rep. (N. S.) 582; Chehalis Coal Company v. Laisure, 166 P. 1158; Brophy v. Brunswick, 2 Wyo. 86; James et al. v. Lederer-Strauss & Co., 32 Wyo. 377.

For defendant in error there was a brief by Wm. B. Cobb and S. S. Combs, of Casper, and oral argument by Mr. Cobb.

There is no Wyoming statute requiring findings either upon the grounds pleaded for vacating a judgment, or on the facts pleaded constituting a meritorious defense or cause of action. Hiltabidle v. Bradburn, (Kan.) 204 P. 707; Witter v. Redwine, (Cal.) 112 P. 311. Findings of fact on a motion for new trial are not required nor are they necessary or usual in practice. Coleman v. Davis, (Colo.) 21 P. 1018; Huntsman v. First National Bank, (Ariz.) 243 P. 508; Owen v. District Court, (Okla.) 143 P. 17; Luman v. Hill, 39 Wyo. 427; Meeker v. Meeker, (Wash.) 201 P. 786; State v. District Court, 37 Wyo. 187. The fraud referred to in the cases cited by plaintiff in error, was intrinsic fraud involved in the merits of the case. Bullard v. Zimmerman, (Mont.) 202 P. 730; Klabunde v. Company, (Nebr.) 48 N.W. 182. On motion for new trial, that view of the evidence will be taken which is most favorable to the ruling granting a new trial. Gamble v. Keyes, (S. D.) 166 N.W. 134; Eder v. Bareolos, (Mont.) 207 P. 471; Bancroft's Code, Practice and Remedies, Vol. 3, Sec. 1876. The later decisions of the Supreme Court of Washington support our position. State v. Superior Court, 267 P. 775; Golson v. Carscallen, 283 P. 681. The case of James v. Lederer-Strauss & Company, 32 Wyo. 377, upon which plaintiff relies, does not seem to decide the question contended for by plaintiff. The point is discussed in Barrett v. Oakley, 40 Wyo. 449. The following cases are cited in support of the position of defendant in error: Pease v. Kootenai County, (Idaho) 65 P. 432; Cutler v. Haycock, (Utah) 90 P. 897; Kerr v. Southwest Company, 294 P. 324; McDonald v. McDonald, (Cal.) 200 P. 657; Butte Co. v. Clarke, (Mont.) 48 P. 303; Wheeler v. Castor, (N. D.) 61 L. R. A. 746; Mulvaney v. Lovejoy, (Kan.) 15 P. 181. The presumption is that the trial court considered, not only the meritorious defense set forth in defendant's verified petition to vacate the judgment, and the answer of plaintiff thereto, but also the evidence of fraud introduced at the trial, and that it observed the requirements of the statute relating to granting of new trials.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding in error brought by the Cottonwood Sheep Company, a corporation, to review an order made by the district court of Natrona County, in a case wherein the corporation aforesaid was plaintiff and defendant in error, Patrick Murphy, was defendant. The parties will hereinafter be referred to as they stood in the district court. The circumstances leading to the filing of the petition in error here and which are necessary to be recited in order to understand the questions raised for determination are substantially these:

Plaintiff instituted the litigation on July 30, 1931, to recover damages from the defendant, alleged to have been sustained through defendant's asserted wrongful trespass upon certain lands in its possession, held and occupied by it. The answer day of the summons issued was August 29, 1931, and the defendant not filing any pleading, on November 10th of that year the plaintiff procured an order entering his default in the case. A copy of this order seems to have been mailed to him from the office of the clerk of the district court at Casper, Wyoming, but no street address appears to have been placed on the envelope containing it. The defendant, in the course of his testimony given on the hearing, which resulted in the order brought here for review, states that he never received the copy and knew nothing concerning it until about the 6th day of September, 1932.

On August 31, 1932, evidence was submitted to the court by the plaintiff in support of the allegations of its petition in the case and judgment was rendered in its favor against the defendant in the sum of $ 5040 and costs; also he was thereby perpetually enjoined from thereafter driving or permitting his sheep to run on plaintiff's lands described in said petition and judgment. This hearing was had in the absence of the defendant and without his knowledge. The judgment thus procured was entered on September 3, 1932, the last day of the March term of the district court for that year. The following September term of said court commenced on the 6th day of that month, the two intervening days being holidays. About the date last mentioned the defendant received through the mails a copy of the judgment aforesaid, and his testimony appears in the record that he immediately consulted an attorney and also the president of the plaintiff, Mr. M. J. Burke, in an effort to get the litigation settled. No success having attended his efforts in this respect, on December 10, 1932, he filed his positively verified petition in the case under the provisions of certain sections of Article 23, in Chapter 89, W. R. S. 1931.

This petition charged that the judgment described above had been obtained by the plaintiff through alleged fraudulent statements made by Burke, its president, "with the design, purpose and intention of misleading defendant, and of inducing defendant not to make any defense in this cause, and to permit a judgment by default to be taken against defendant." The defendant also set out in his pleading separate defenses to each of the four stated causes of action in plaintiff's petition, in effect negativing the several charges of trespass and damage as pleaded by it. Defendant's petition prayed that the judgment aforesaid be set aside; that a time be fixed within which defendant should answer or plead to plaintiff's petition; and that a new trial of the cause be had upon the issues thus framed. A summons was issued upon this petition and served upon the plaintiff as provided by § 89-2305, W. R. S. 1931.

Plaintiff demurred to defendant's petition on the several grounds of failing to state facts sufficient both to constitute a cause of action in his favor and to entitle "plaintiff" to relief prayed for. The demurrer was thereafter overruled by the court and plaintiff interposed its answer to the pleading thus attacked, said answer admitting the commencement of the action and service of summons upon defendant as detailed above; admitting also that defendant entered no appearance therein, and the recovery by it of the judgment aforesaid, and denying the remaining allegations set forth in defendant's petition for a new trial.

In an order subsequently made by the court it was provided that on March 20, 1933, the parties to the cause might produce evidence "upon the issue of fraud made by the said petition of defendant and upon the answer thereto by the plaintiff." This hearing was not had, however, until April 5, 1933, when each of the parties appeared with counsel and the issue so raised was tried by the court. At the conclusion of the introduction of evidence on this hearing arguments were had, the cause submitted, and thereupon, as stated in the bill of exceptions before us, "the court rendered its decision." Thereafter, and on the 13th of April following, the formal order in the matter appears to have been made and entered wherein the court found generally in favor of defendant and against the plaintiff, and thereupon vacated and set aside both its previous order of default and the aforesaid judgment against the defendant. This order further directed that the defendant be given until and including April 15, 1933, within which to file his answer in the cause and plaintiff be allowed ten days thereafter to reply to said answer. Exceptions were saved by plaintiff to the order just described, and it is the one of which complaint is now made.

A motion to dismiss the proceedings in error has been filed by the defendant, but...