Cure v. Southwick

• Decision Date: 23 February 1960
• Docket Number: No. 9960,9960
• Citation: 137 Mont. 1,349 P.2d 575
• Parties: Orin R. CURE, as Executor of the Estate of Bernal Southwick, Plaintiff and Appellant, v. Helen SOUTHWICK, Defendant and Respondent.
• Court: Montana Supreme Court

Page 575

349 P.2d 575

137 Mont. 1

Orin R. CURE, as Executor of the Estate of Bernal Southwick Plaintiff and Appellant, v. Helen SOUTHWICK, Defendant and Respondent.

No. 9960.

Supreme Court of Montana.

Submitted Jan. 12, 1960.

Decided Feb. 23, 1960.

Hoffman & Cure, Great Falls, for appellant. Orin R. Cure, Great Falls, argued orally.

Hall, Alexander & Kuenning, Great Falls, for respondent. John H. Kuenning, Great Falls, argued orally.

PHILIP C. DUNCAN, District Judge, sitting in place of Mr. Chief Justice HARRISON, delivered the Opinion of the Court.

Bernal Southwick, the husband and original plaintiff and appellant herein, died subsequent to the perfection of the appeal and his executor was substituted by order of this court.

This is an appeal from an order setting aside the default of the defendant wife in a divorce action and vacating the judgment and decree of divorce obtained against her.

On October 13, 1955, the wife commenced a separate maintenance action against her husband in the district court of Cascade County. On the same day, in that action, summons was served on the husband and an order requiring the husband to appear on October 27, 1955, and show cause why he should not be required to pay his wife support and maintenance money and her costs of action and attorney's fees.

On October 24, 1955, the divorce action was filed by the husband in the same court and summons was served on the wife on November 3, 1955.

On November 2, 1955, the husband appeared in the separate maintenance action by filing and serving a motion to strike. As to the hearing on the order to show cause pending in this action, the same appears to have been continued from time to time and never heard, the last continuation being made on November 23, 1955, the day the wife's appearance was due in the divorce action, to December 7, 1955. The motion to strike was never called up for hearing or otherwise disposed of.

On January 12, 1956, the husband and wife entered into and signed a written agreement, prepared by the husband's attorney, reciting that both the separate maintenance and divorce actions were pending and that the parties had reached an agreement as to the temporary support and attorney's fees which the husband 'may be required or called upon to pay on account of both actions'. The agreement then provides among other things that the husband shall pay the wife $250 per month during the pendency of the separate maintenance action and the husband shall pay Robert T. Merrill (the wife's then attorney) $1,000 for the wife's attorney's fees in both actions; that upon execution of the agreement the order to show cause in the separate maintenance action shall be dismissed by the wife; that the monthly support payments shall continue during the pendency of the divorce action; that if judgment is entered in the separate maintenance action, such judgment shall supersede the agreement. Concurrently with the execution of the agreement a stipulation was prepared by the husband's attorney and signed by the husband providing that the order to show cause in the separate maintenance action may be dismissed. The wife never signed the stipulation, but the husband's attorney assumed she had and never knew otherwise until he read the affidavit of Robert T. Merrill in support of the motion to set aside the default. When the agreement was signed the husband paid Merrill the $1,000 attorney's fee and began to make to his wife the payments provided and continued making them until the entry of the divorce decree.

On July 25, 1956, the default of the wife was entered in the divorce action. The husband's attorney and the wife's then attorney, Robert T. Merrill, had their offices in the same building in Great Falls and it appears that on several occasions, including times subsequent to the making of the agreement and the entry of the default, the two attorneys met and discussed the litigation, including tardiness of the husband in making the payments required of him under the agreement, but Merrill was never advised of the entry of the default.

Merrill was absent from the state from August 10, 1957, to September 7, 1957, and during that time and on August 22, 1957, the husband appeared in court and secured a decree of divorce.

On September 9, 1957, a Monday, Merrill returned to his office and first learned of the default and the decree of divorce.

On September 10, 1957, the defendant wife filed her motion to set aside the default and vacate the judgment and decree entered in the divorce action, stating that the motion would be made upon the grounds that the default was taken against her through mistake or excusable neglect of her counsel, upon the notice of hearing of the motion, the affidavits of herself and Merrill filed with the motion, and upon the pleadings, papers, files and records in the action. Also on September 10, 1957, the present attorneys for the wife were substituted for Robert T. Merrill.

Thereafter, on written stipulation of counsel, the motion was submitted to the court on written briefs and on April 10, 1958, the court granted the motion and made the order from which this appeal is taken.

On September 4, 1958, after perfection of this appeal, the husband died testate leaving considerable property subject to administration. In his will of March 10, 1958, the husband describes himself as a single man and makes no provision for appellant wife.

The foregoing appears to be the undisputed facts. The disputed facts almost entirely involve the discussions between the husband's attorney and Merrill while he was the wife's attorney.

Merrill, in his affidavit, states that there were a number of conversations about reconciliation; that on November 10, 1955, the husband's attorney assured Merrill that negotiations for a reconciliation were open and it would not be necessary for the wife to file a formal appearance in the divorce action and the default of the wife would not be entered; that subsequently and prior to January 1, 1956, it gradually became apparent to Merrill that reconciliation was not possible at that particular time and the husband's attorney agreed and drew the agreement and stipulation of January 12, 1956, and delivered them to Merrill, and at the time of the delivery the two attorneys discussed trying the separate maintenance action on its merits, but no mention was made of the divorce action; that on several occasions subsequent to the making of the agreement the two attorneys discussed the tardiness of the husband in making payments under the agreement, and on each occasion the discussion was such as to cause Merrill to believe that no further action would be taken in the divorce action without prior discussion between the attorneys.

The husband's attorney, in his affidavit, states that when he filed the husband's appearance in the separate maintenance action he discussed the divorce action with Merrill; that at all times he informed and advised Merrill that Merrill should enter an appearance in the divorce action and that unless Merrill did so the wife's default would be taken; denies discussing with Merrill at various times the possibility of reconciliation, but says he advised Merrill a reconciliation was not possible and that a decree of separate maintenance was not the solution, that the wife was solely interested in getting money and had married the husband and plied him with drink for that reason, and at all times informed Merrill that the only solution was a decree of absolute divorce; denies that negotiations for reconciliation were ever open; denies he ever informed Merrill that it would not be necessary for the wife to enter an appearance in the divorce action and her default would not be taken; that he warned Merrill to enter an appearance or the default would be taken and Merrill failed and refused to heed...