Culver v. Mountain Home Electric Co.

• Decision Date: 04 February 1910
• Citation: 17 Idaho 669,107 P. 65
• Parties: W. W. CULVER, Respondent, v. THE MOUNTAIN HOME ELECTRIC COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

107 P. 65

17 Idaho 669

W. W. CULVER, Respondent, v. THE MOUNTAIN HOME ELECTRIC COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 4, 1910

DEMURRER-DISPOSITION OF SAME-ISSUE OF LAW-DEFAULT-PRESUMPTION-VACATING JUDGMENT-SHOWING REQUIRED-AFFIDAVIT OF MERITS-ANSWER.

1. The filing of a demurrer to a complaint presents an issue of law which the court is required to decide, and the defendant is not in default until such issue of law is disposed of, and it is error for the court to permit default to be entered or to enter judgment against the defendant until such demurrer is overruled.

2. But when the record shows that the default of the defendant is entered for want of an answer, and trial had and judgment rendered, this court will presume, in the absence of a showing to the contrary, that the trial court acted upon the demurrer and overruled the same.

3. An application to set aside and vacate a judgment is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal.

4. To entitle a defendant to have a judgment opened upon the grounds of mistake, inadvertence, surprise or excusable neglect, it is necessary to file an affidavit of merits or tender an answer showing that the defendant has a meritorious defense to such action, and it is not an abuse of legal discretion on the part of the trial court in overruling an application to open a default where it does not appear and is not shown that the defendant has a defense to said action.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. Edward A. Walters, Judge.

An action for damages and for injunctive relief. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed; costs awarded to respondent.

W. C Howie, for Appellant.

It was error to enter default and take judgment when there was a demurrer on file undisposed of. (6 Ency. Pl. & Pr. 93.) And it is immaterial that the demurrer was filed after the time required to answer. (6 Ency. Pl. & Pr. 84, 85.)

The showing that the default was taken through the excusable neglect, if neglect at all, of appellant's counsel, as well as that of the client, is a ground for opening the default. (Horton v. New Pass G. & S. Co., 21 Nev 184, 27 P. 376; Battey v. O'Connor, 106 Ind. 81 5 N.E. 880; Dodge v. Ridenour, 62 Cal. 263; 6 Ency. Pl. & Pr. 168 et seq.) Especially is that true when the neglect is caused by the sickness of the attorney. (Wishard v. McNeil, 78 Iowa 40, 42 N.W. 578; Montgomery County v. Am. Emigrant Co., 47 Iowa 91.) And when the default has been caused in any way by representation of or misunderstanding with counsel of the opposite party. (Blackwood v. Cutting Packing Co., 71 Cal. 461, 12 P. 493; Heinemann v. Le Clair, 82 Wis. 135, 51 N.W. 1101; Himmelmann v. Sullivan, 40 Cal. 125; Reclamation Dist. v. Hamilton, 112 Cal. 603, 44 P. 1074.)

L. B. Green, for Respondent.

It must be borne in mind that the trial court has many opportunities in the proceedings in the lower court to know and understand the real situation of each case there pending. The same judge who dictated the minutes in open court, exonerating the bond and fixing the time to answer, denied two motions to open this default. (Western Loan & Savings Co. v. Smith, 12 Idaho 103, 85 P. 1084.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

On June 27, 1908, the respondent filed an amended complaint against the appellant. On July 10, 1908, the default of the defendant was entered by the clerk for failure to appear and answer. On July 22d the appellant filed a demurrer to the amended complaint. On Oct. 22, 1908, the minutes of the court recite, "This matter came on regularly to be heard this day, upon the motion of the defendant to set aside default heretofore entered, and be permitted to answer, W. C. Howie, Esq., appearing as counsel for defendant, and J. M. Owen, Esq., appearing as counsel for plaintiff. The court being fully advised in the premises, it is hereby ordered that said motion be and the same is hereby allowed and the defendant allowed until Monday, October 26th, 1908, to file and serve answer." The minutes of the court of Nov. 6, 1908, recite, "By agreement of counsel this cause continued for the term and sixty days given to file and serve answer, and further agreed by counsel for defendant in open court that the restraining order may stand and the bond for the same may be exonerated." On Feb. 2, 1909, the clerk entered the default of the defendant for failing to file and serve its answer to the amended complaint within the time allotted by the order of the court on Nov. 6, 1908. On Feb. 12, 1909, a trial was had, witnesses sworn on behalf of the plaintiff, and judgment rendered in favor of the plaintiff, continuing the injunction theretofore issued and for damages in the sum of $ 500 and for costs. This judgment was filed Feb. 13, 1909. On Feb. 25, 1909, the respondent made a motion to set aside this judgment on the ground of mistake, inadvertence, surprise and excusable neglect, and supported such motion by the affidavit of his counsel and the affidavit of one John H. Garrett. On the same day the district court entered an order requiring the plaintiff to show cause before the court at chambers on Apr. 5th why said judgment should not be set aside, and the defendant be allowed to serve and file an answer, and that pending the hearing of the order to show cause why proceedings should not be stayed. On Mar. 5th the respondent filed a motion for an order revoking the order made on Feb. 24th, restraining the plaintiff from issuing execution for enforcing the judgment; and in the event the order is not revoked, that an order be made requiring the defendant to give a bond in the sum of $ 600, conditioned that the defendant would pay any judgment together with costs which had been rendered against it or which may hereafter be rendered against the defendant in favor of the plaintiff. This motion was based upon the affidavit of the plaintiff, and on the same day the district judge made an order requiring the defendant to give such bond, and upon failure to give such bond, that the judgment stand; and that if the bond be not given within six days, that the order made on Feb. 24th be revoked and annulled in so far as it restrained the plaintiff from proceeding by execution, attachment, or other legal process on said judgment. On Apr. 14, 1909, the minutes of the court show, "The motion heretofore made by defendant to set aside judgment and open default herein was by the court denied and overruled, to which ruling by the court defendant duly excepts."

On Apr. 24, 1909, the defendant made a motion for an order vacating and setting aside the order of Apr. 14th and based this motion upon the former application and the papers in the case and upon the "language of the court used in his decision upon the former application." On the same day the court made an order: "This matter coming on regularly to be heard, on the motion of defendant to set aside the default and judgment entered in the above-entitled action, W. C. Howie appearing for the defendant and for said motion, and L. B. Green appearing for the plaintiff and against said motion, affidavits having been introduced for and against said motion, and the court having duly considered the same and being fully advised in the premises, it was hereby ordered that said motion be, and the same is hereby overruled and disallowed."

The appellant appeals from the judgment entered on Feb. 13, 1909 in favor of the plaintiff for the sum of $ 500 damages and $ 42.65 costs, and also appeals from the order made in said cause by the judge of the district court on Apr. 24, 1909, overruling and disallowing defendant's motion to set aside the default and judgment in said cause. The appellant's contention is, first, that the judgment rendered by the court on Feb. 12, 1909, is erroneous for the reason that at such time the appellant was not in default, because there was a demurrer on file which had not been disposed of, and for that reason the...