Crane v. City of Harrison

• Decision Date: 20 July 1921
• Parties: A. A. CRANE, Respondent, v. CITY OF HARRISON, a Municipal Corporation, and W. A. THOMAS, as Treasurer and Ex-Officio Tax Collector of Kootenai County, Idaho, Appellants
• Court: Idaho Supreme Court

200 P. 892

34 Idaho 167

A. A. CRANE, Respondent, v. CITY OF HARRISON, a Municipal Corporation, and W. A. THOMAS, as Treasurer and Ex-Officio Tax Collector of Kootenai County, Idaho, Appellants

Supreme Court of Idaho

July 20, 1921

DEFAULT JUDGMENT-DISCRETION OF TRIAL COURT-INJUNCTION.

1. Action of trial court in opening default and vacating default judgment will not be disturbed except in case of clear abuse of discretion by the trial court.

2. In order to entitle plaintiff to temporary injunction restraining collection of sidewalk tax, complaint must show some present interest in property or liability for payment of tax.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Motion by plaintiff to set aside default. Sustained. Defendant appeals. Affirmed.

Motion by defendant to dissolve injunction. Denied. Defendant appeals. Reversed.

Order of the district court reversed, and injunction dissolved without prejudice.

J. F Ailshie and Ray Agee, for Appellants.

"It is always an absolute objection to the allowance of an injunction, for the purpose of protecting property during a litigation, that the complaint shows that the party seeking the injunction has no title to or interest in the property and no claim to the ultimate relief sought by the litigation in other words, that the complaint shows no equity." (14 R. C. L. 355; Brunzell v. Stephenson, 30 Idaho 202 164 P. 89; McGinnis v. Friedman, 2 Idaho 393, 17 P. 635; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Birchfield v. Bourland (Tex. Civ.), 187 S.W. 422; Porter v. Armour & Co., 241 Ill. 145, 89 N.E. 356; Erwin v. Central Union Tel. Co., 148 Ind. 365, 46 N.E. 667, 47 N.E. 663.)

Fred D. Crane and W. B. McFarland, for Respondent.

Respondent had a sufficient interest in the subject matter of the action at the time of the commencement thereof to authorize the maintenance of the same. (Giselman v. Starr, 106 Cal. 651, 40 P. 8.)

The real party in interest is the party who is to be benefited or injured by the judgment in the case. (Jackson v. McGilbray, 46 Okla. 208, 148 P. 703; McQuillin, Mun. Corp., p. 4511; City of Seattle v. Kelleher, 195 U.S. 351, 25 S.Ct. 44, 49 L.Ed. 232.)

DUNN, J. Rice, C. J., and Budge, McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

Appellants are prosecuting two appeals, the first being an appeal from the decision of the district court sustaining respondent's motion to set aside the default entered against him for failure to amend his complaint within the time allowed by the court and to vacate the judgment dismissing his action, and the second an appeal from the decision of the court denying appellant's motion to dissolve an injunction.

The default against the defendant entered on February 8, 1921, rests upon the service of an order of court sustaining a demurrer to the complaint and allowing ten days for filing an amended complaint made by leaving a copy of said order in the office of Fred D. Crane, counsel for respondent, at a time when said counsel was absent. While we have no statute requiring service of such an order as this, service was attempted under C. S., sec. 7199, which reads in part as follows:

"The service of notice or other paper may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows:

"1. If upon an attorney, it may be made during his absence from his office by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office."

The affidavit of service of this order filed on behalf of appellants states that service was made "by leaving a true copy of said order in a conspicuous place on the desk of said Fred D. Crane in his office in the city of Coeur d'Alene, Kootenai County, Idaho, between the hours of eight in the morning and six in the afternoon, to wit, at or about the hour of 11:45 o'clock in the forenoon of said day; that at the time of making said service and leaving said papers as aforesaid, said Fred D. Crane was absent from his office and there was no clerk in said office nor any other person in charge thereof. And affiant further says that he knows the person so served to be the attorney of record for plaintiff, A. A. Crane, in the above-entitled action."

The affidavit of Fred D. Crane in support of the motion to open default and set aside the judgment on the ground of plaintiff's mistake, inadvertence, surprise and excusable neglect, says that after the argument of said demurrer on January 18, 1921, he left Coeur d'Alene and went to Boise, Idaho, upon business matters and did not return to Coeur d'Alene until March 6, 1921; that he did not know of the ruling of the court sustaining the demurrer to the plaintiff's complaint until about February 10, 1921, and that he did not know of the default judgment taken against plaintiff until February 14, 1921; that upon his return from Boise on March 6, 1921, he found no copy of the order sustaining said demur...