Curtis v. Siebrand Bros. Circus & Carnival Co., 7372

• Decision Date: 06 May 1948
• Docket Number: 7372
• Citation: 68 Idaho 285,194 P.2d 281
• Court: Idaho Supreme Court
• Parties: CURTIS et al. v. SIEBRAND BROS. CIRCUS & CARNIVAL CO. et al

194 P.2d 281

68 Idaho 285

CURTIS et al. v. SIEBRAND BROS. CIRCUS & CARNIVAL CO. et al

No. 7372

Supreme Court of Idaho

May 6, 1948

Rehearing Denied June 21, 1948.

Rehearing Denied June 21, 1948.

Appeal from District Court, Fifth Judicial District, Bannock County Isaac McDougall, Judge.

Reversed, and cause remanded with directions.

George R. Phillips and H. J. Swanson, both of Pocatello, for appellants.

On an appeal such as this which is from an order setting aside a judgment and vacating a clerk's default, it is necessary to show an abuse of judicial discretion. Yet this rule is applied together with the one also announced, long ago, by the Idaho State Supreme Court, that where the application is on affidavits and the files in the case, (which is the present situation) and the Appellate Court has all the showing that was before the trial judge who granted the motion, (which is also the present situation) then the Appellate Court is in as favorable a position for considering the matter, as was the trial judge. Cleek v. Virginia Gold Min. & Mill. Co., 63 Idaho 445, at page 453, 122 P.2d 232, at page 236, par. [2-4]; Kynaston v. Thorpe, 29 Idaho 302, 305, 158 P. 790; Hall v. Whittier, 20 Idaho 120, 125 (2nd sentence on that page), 116 P. 1031; Parsons v. Wrble, 19 Idaho 619, 115 P. 8.

The respondents base their motion, respecting their first ground that the judgment was entered because of the mistake, inadvertence, surprise, and excusable neglect (among others) of their attorneys. But the amdt. to Sec. 5-905 I.C.A. by the legislature of 1921 relating to the alleged neglect of an attorney, can be invoked in behalf of the moving parties, only where the alleged attorney has the right, and owes the duty, to represent the litigant. Cleek v. Virginia Min. & Mill. Co., 63 Idaho 445, 456(7), 122 P.2d 232, "It is confined to attorneys who have the right, and owe the duty, to represent the litigant in the Courts of Idaho." Kingsbury v. Brown, 60 Idaho 464, 471, 92 P.2d 1053, 124 A.L.R. 149.

Merrill & Merrill, of Pocatello, for respondents.

The court may relieve a party from a default judgment taken through mistake, inadvertence surprise, or excusable neglect of the party defaulted, or through the neglect of the attorney of such party, upon application made within six months after the adjournment of the term at which such default judgment was entered. Section 5-905 I.C.A.; Pittock v. Buck, 15 Idaho 47, 96 P. 212; Brainard v. Coeur d'Alene Antimony Mining Co., 35 Idaho 742, 208 P. 855; Sessions v. Walker, 34 Idaho 362, 201 P. 709; Wagner v. Mower, 41 Idaho 380, 237 P. 118.

A defendant may be without fault and the default judgment may be set aside regardless of whether he personally engaged an attorney, as he may do so through another. Miller v. Brinkman, 48 Idaho 232, 281 P. 372; Brainard v. Coeur d'Alene Antimony Mining Co., 35 Idaho 742, 208 P. 855; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Wagner v. Mower, 41 Idaho 380, 237 P. 118; Consolidated Wagon & Machine Co. v. Housman, 38 Idaho 343, 221 P. 143; Ward v. Burley State Bank, 38 Idaho 764, 225 P. 497.

Mistake or neglect relied upon for relief from a default judgment is such as may be expected of a reasonably prudent person under like circumstances. Savage v. Stokes, 54 Idaho 109, 28 P.2d 900.

Application to be relieved from default judgment is addressed to the legal discretion of the trial court, and the order of the court will not be reversed unless the discretion has been abused. John A. Vaughan Corp. v. Title Ins. & Trust Co., 123 Cal.App. 709, 12 P.2d 117; Pittock v. Buck, 15 Idaho 47, 96 P. 212; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; Armstrong v. Armstrong, 81 Cal.App.2d 316, 183 P.2d 901.

Holden, Justice. Givens, C. J., and Miller, J., concur. Hyatt, Justice, concurring specially. Givens, C. J., concurs. Budge, Justice, concurring in part and dissenting in part.

OPINION

Holden, Justice.

June 28, 1946, an action was commenced in the district court of Bannock county entitled Doyle Curtis and Raymond Curtis v. Siebrand Bros. Circus & Carnival Co., a partnership; and John Doe Siebrand (whose true first name was unknown), individually. The action was brought to recover general damages in the sum of $ 4,000 and punitive damages in the sum of $ 1,000. For the recovery of general damages it was alleged: "That on or about the 24th day of June, 1946, in the evening of that day, the plaintiffs, while in attendance at the defendant's Carnival, in Pocatello, Idaho, were set upon by the defendant's agents, and servants, while such agents and servants were acting in the line, course, and scope of their employment, and that the plaintiffs were violently, maliciously, and viciously assaulted with a deadly weapon, to-wit: a black jack, and were beaten, struck, kicked about the head, face, chest and arms, so that the plaintiffs were badly bruised and injured, to their damage in the sum of $ 5,000." The complaint did not allege punitive damages.

Summons issued June 28, 1946, and was personally served on defendant and respondent, John Doe Siebrand (whose true name, it was later found, is Peter Siebrand), in Bannock county, on the same day, by Deputy Sheriff Kenneth Dunn. After the expiration of the time within which defendants could appear or plead to the complaint, to-wit, August 5, 1946, the clerk entered the default of the defendants. On the same day plaintiffs moved to amend the title of the action to make it read: "Siebrand Bros. Circus & Carnival Co., a Partnership," and also to further amend the title of the cause so that it would read "Pete Siebrand" instead of John Doe Siebrand, which motion was by the court granted. And on the day last aforesaid, when the cause came regularly on for trial, it appears "plaintiffs were sworn and testified, and the following witnesses were sworn and testified, namely, Dr. J. H. Lynn of Pocatello, Idaho; O. G. Roche and George R. Phillips of Pocatello, Idaho."

August 7, 1946, judgment was duly and regularly rendered and entered against defendants, as follows:

"The Court having heard and considered the evidence offered finds that the allegations of the Complaint are true, and that the defendants, their agents and servants in the line, course, and scope of their employment, violently, maliciously and viciously assaulted the plaintiffs with a deadly weapon, to-wit: some type of black jack and that the plaintiffs were beaten, struck and kicked about the head, face, chest and arms, and were badly bruised and injured. The Court finds the general damages in favor of the plaintiffs and against the defendants in the sum of $ 2,500.00. The Court further finds from the evidence that the plaintiffs are entitled to exemplary damages and fixes the amount of exemplary damages in the amount of $ 1,000, wherefore,

"It Is Adjudged and Decreed That the plaintiffs, Doyle L. Curtis and Raymond Curtis do have and recover of and from the defendant Siebrand Bros. Circus & Carnival Co., a Partnership, also known and advertised as Siebrand Bros. Circus and Carnival Combined, and as Siebrand's Bros. Carnival and Pete Siebrand doing business under the name of Siebrand Bros. Carnival & Circus Co., in the amount of $ 3,500.00, together with costs of Court taxed in the sum of $ 21.60."

January 31, 1947, defendants served on plaintiffs notice of motion and motion to set aside the clerk's default as well as the said judgment, the notice and motion being filed February 3, 1947, less than six months after the entry of the judgment. The motion was made on the grounds (1) that the clerk's default as well as the judgment were "taken against these defendants through the mistake, inadvertence, surprise and excusable neglect of themselves and their agents and attorneys"; (2) That the "judgment was entered after an amendment of the complaint, and particularly the title thereto, without notice on the defendants or any of them"; and (3) that "said default and judgment has been taken upon a complaint which fails to state a cause of action against" the defendants. The motion was supported by the affidavits of C. W. Tierney, managing agent for Toplis and Harding, Inc., a corporation of Chicago, Ill.; defendant Peter W. Siebrand, and A. L. Merrill. At the same time a demurrer and answer to the complaint were served.

February 17, 1947, plaintiffs served and filed the affidavit of Kenneth Dunn, George R. Phillips, and H. J. Swanson in opposition to the motion of the defendants to set aside the clerk's default and vacate the judgment. The motion was heard February 7, 1947. February 28, 1947, the motion was granted and an order made and filed vacating and setting aside the clerk's default and the judgment. The appeal to this court is from the order as well as an amendment thereof.

Section 5-905, I.C.A., so far as pertinent here, provides: "The court may * * * also relieve a party, or his legal representative, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and whenever, for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term in which such judgment, order or proceeding complained of was taken, the court, or the judge thereof in vacation, may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of an attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, in vacation, shall, upon application filed within the time above limited, set aside...