Crawford v. Pierse
| Decision Date | 05 November 1919 |
| Docket Number | 4040. |
| Citation | 185 P. 315,56 Mont. 371 |
| Parties | CRAWFORD v. PIERSE et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Roy E. Ayers, Judge.
Action by Sara A. Crawford against Allen Pierse and another copartners doing business under the name and style of Pierse & Poetter. From an order setting aside judgment entered upon defendants' default, plaintiff appeals. Affirmed.
Oscar O. Mueller, of Lewistown, for appellant.
Belden & De Kalb, of Lewistown, for respondents.
Appeal by the plaintiff from an order made upon application of defendants, setting aside a judgment entered on their default. The order was made on the ground that the default occurred through the excusable neglect of defendants' counsel. Several contentions are made in this court, but it will be necessary to notice only two of them.
1. Plaintiff contends that the district court was guilty of an abuse of discretion because, though the application was sufficient to make out a case of excusable neglect, it was wholly insufficient to warrant the granting of the order, in that it was not supported by a statement of the facts constituting a defense to the action either in the form of an affidavit of merits or a copy of defendants' proposed answer. The facts stated in the affidavit were, we think sufficient to excuse counsel's delinquency. But however meritorious in this respect such an application may be, it will not justify the court in setting aside a default judgment and permitting the defendant to answer, unless he exhibits a prima facie good defense on the merits. The only showing made in this behalf was the following statement by defendant Poetter in his affidavit tendered in support of the application:
"That he had fully and fairly stated the facts in the case to Belden and De Kalb, counsel for defendants *** and after such statement was advised by them that defendants had a good and substantial defense on the merits of the action."
This amounts to nothing more than a statement of the conclusion of counsel upon facts not disclosed, that the defendants had a meritorious defense. That it does not meet the requirements of the rule often announced by this court is demonstrated by the following cases: Bowen v. Webb, 34 Mont. 61, 85 P. 739; Schaeffer v. Gold Cord Min. Co., 36 Mont. 410, 93 P. 334; Vadnais v. East Butte E. C. Min. Co., 42 Mont. 543, 113 P. 747.
It appears that the default and judgment were entered after the overruling of a general demurrer which counsel had interposed to the complaint, but failed to appear and argue at the time fixed by the court for that purpose. After the demurrer had been overruled, and within the time allowed by the court for defendants to answer, Mr. De Kalb had requested the presiding judge to make an order reinstating the demurrer for argument. This request was made of the judge at his chambers. The judge promised to make the order. Later and before the time for answer had expired, Mr. Belden spoke to the judge on the street near the courthouse, who again promised to direct the clerk to enter the requested order. The order was never made; but after default had been entered by the clerk at the request of plaintiff's counsel, the judge in open court heard the evidence submitted by him and rendered judgment. Such practice as was pursued by counsel here cannot be commended. To have the order overruling the demurrer set aside, they should have applied to the court by motion, after notice to counsel for defendants. Rev. Codes, § 6589. Upon obtaining an order vacating the prior order. they should have taken care to see that it was properly entered by the clerk. We think, however, that they were put off their guard by the promises of the judge, and for this reason failed to save the default. But, as pointed out in the cases cited above, a showing of excusable neglect was not enough to move the court to exercise the discretionary power vested in it by the statute. It was indispensable that the facts constituting a substantial defense on the merits should have been exhibited to the court, either in an affidavit or in a copy of defendants' proposed answer.
Counsel cite and rely upon the case of State ex rel. Stephens v. District Court, 43 Mont. 571, 118 P. 268, Ann. Cas. 1912C, 343, to maintain their position that the affidavit of defendant Poetter is sufficient as one of merits. That case has no application. What was there said referred to the contents of the affidavit of merits required by section 6505 of the Revised Codes to support a motion for a change of the place of trial.
2. Counsel for defendants contend that, though the court abused its discretion in making the order, its action should be upheld for the reason that it did not have jurisdiction to render the judgment, because the complaint does not state facts sufficient to constitute a cause of action. Counsel for plaintiff insists that this contention was not made in the district court, and therefore cannot be made for the first time in this court. The contention of counsel for defendants proceeds upon the assumption that the judgment was void; that the district court would properly have set it aside if its attention had been called to it, and hence that this court will not order it to be reinstated.
Of course, if the judgment was void, the contention must be sustained, for its validity was open to question at any time. State ex rel. Mannix v. District Court, 51 Mont. 310, 152 P. 753. It is elementary that when the judgment roll upon its face shows that the court was without jurisdiction to render the particular judgment, its pronouncement is in fact no judgment. It cannot be enforced. No right can be derived from it. All proceedings founded upon it are invalid and ineffective for any purpose. It is open to collateral attack. The court which rendered it may set it aside at any time as an incumbrance upon its records. State ex rel. Mannix v. District Court, supra; In re Dolenty's Estate, 53 Mont. 33, 161 P. 524; Van Fleet on Collateral Attack, § 16; 1 Freeman on Judgments, § 117. An affirmance of such a judgment on appeal cannot make it valid. Chambers v. Hodges, 23 Tex. 104; Wilson v. Montgomery, 14 Smedes & M. (Miss.) 205. Nor can the Legislature by curative statute give it life or force. Davidson v. Wampler, 29 Mont. 61, 74 P. 82.
When the sufficiency of a complaint is challenged for the first time on appeal, the objection that it does not state a cause of action is regarded with disfavor, and every reasonable inference will be drawn from the facts stated necessary to uphold it. Ellinghouse v. Ajax Live Stock Co., 51 Mont. 275, 152 P. 481, L. R. A. 1916D, 836. Matters of form will be disregarded, as well as allegations that are irrelevant and redundant. If upon any view the plaintiff is entitled to relief the pleading will be held sufficient. Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976. A corollary of this rule is that a judgment rendered upon default will not be held void even though the statement of the cause of action may be so defectively made that it would have been open to general demurrer, provided its direct averments necessarily imply, or reasonably require, an inference of the facts necessary to supply the defect. County of Silver Bow v. Davies, 40 Mont. 418, 107 P. 81; Phillips on Code Pleading, § 352.
Jurisdiction is the power to hear and determine the particular case presented for consideration, and to render such a judgment as the law authorizes in that case. In other words, it is the power to hear and determine the questions coram judice in that particular case. State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 P. 395. See, also, State ex rel. King v. District Court, 24 Mont. 494, 62 P. 820; 1 Black on Judgment, § 242; 1 Freeman on Judgments, 117.
The district court is a court of general jurisdiction. It therefore has power to hear and determine all classes of cases, except petty cases, of which justices of the peace and police courts are by the Constitution (article 8, § 11) given exclusive cognizance. Though within this limitation it has jurisdiction, in a general sense, over all classes of cases, it can acquire jurisdiction of a particular civil case only by the filing of a written complaint (Rev. Codes, § 6513), which, besides the formal parts, must contain a statement of the facts constituting the cause of action, in ordinary and concise language. Section 6532. However clear and concise the statement of facts may be, if it does not disclose a case upon which the court may grant redress, jurisdiction does not attach. Even though it appears that the pleader has attempted to state a case of which the court has cognizance, still jurisdiction does not attach unless the allegations bring the complaint within the rule announced in county of Silver Bow v. Davies, supra. The court cannot redress a particular wrong unless the facts constituting the wrong are made manifest to it in a written complaint, as provided by the statute. It is only by this means that its general power can be brought into activity in a given case. If the pleading is not sufficient to put the defendant in the wrong, the court cannot grant redress. A judgment based upon such a pleading is invalid. The pleading is in effect no more than a piece of blank paper. And, since when a judgment has been rendered on default, the complaint, with the memorandum indorsed upon it that default has been entered, the summons with the proof of service, and a copy of the judgment constitute the record (Rev. Codes, § 6719), the record itself discloses the infirmity of the judgment. It is thus exposed to collateral attack at any time when it is sought to be made the basis of a right.
Counsel do not cite any cases in...
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