Cutler v. Haycock

• Decision Date: 11 June 1907
• Docket Number: 1805
• Citation: 32 Utah 354,90 P. 897
• Court: Utah Supreme Court
• Parties: CUTLER v. HAYCOCK

90 P. 897

32 Utah 354

CUTLER v. HAYCOCK

No. 1805

Supreme Court of Utah

June 11, 1907

APPEAL from District Court, Sixth District; Jno. F. Chidester Judge.

Replevin by Margaret R. Cutler against Thomas Haycock. From an order denying defendant's application to vacate judgment by default for plaintiff and to set aside the default, defendant appeals.

REVERSED AND TRIAL COURT DIRECTED TO VACATE THE JUDGMENT, SET ASIDE THE DEFAULT, AND PERMIT DEFENDENT TO ANSWER.

Geo. B Greenwood and Thomas & Maycock for appellant.

W. F Knox and S. R. Thurman for respondent.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an appeal from a judgment entered against Haycock, the appellant, by default, and the matters presented for review arise out of the proceedings prior to judgment and those subsequent thereto on the application to set aside the default and to vacate the judgment. The facts, briefly stated, are as follows: The summons was duly served on the appellant at Panguitch, Garfield county, Utah, on November 11, 1905, in an action of replevin commenced by respondent against appellant in said court. A complaint and affidavit in replevin in due form were also filed on the same day. The service and return are regular in form and substance. By section 2939, Rev. St. 1898, a party served in the county where the action is lodged must appear and defend the action within twenty days after service of summons upon him. The twenty days in this case expired on December 1, 1905. On that day the attorney for appellant, through his office clerk, served a demurrer on the attorney for respondent at Beaver, in Beaver county, Utah, by delivering a copy to the wife of the attorney; he being absent from his office and residence attending court at Panguitch in Garfield county. The distance from Panguitch to Beaver is about fifty miles, and communication between the two places is by a stage or mail route, making trips Mondays, Wednesdays, and Fridays of each week. On the evening of December 1st appellant's attorney deposited the original demurrer, with proof of service thereto attached, in the post office at Beaver, and the same arrived in Panguitch at the clerk's office in the forenoon of December 4th following. On the 2d of that month the attorney for respondent, without actual knowledge of the service of the demurrer at his residence, entered a default against appellant for a failure to plead in the action. On the 4th, when the demurrer reached the clerk's office, respondent's attorney was informed of the fact by the clerk, and the attorney objected to the filing thereof because it was out of time; and the clerk, in pursuance of the objection, did not place his filing mark on the demurrer, but lodged it with the papers in the case. Within a few days thereafter, however, he filed the same as of December 4th. On December 6th, following, with the record as above stated, respondent's attorney insisted upon and obtained a judgment by default against appellant upon making proof of the allegations of the complaint. Appellant, prior to the entering of the judgment, had informed respondent's attorney that the matter of preparing a defense to the action was left in the hands of his attorney at Beaver; that he had promptly, on being served with the summons, transmitted the papers to his attorney; and that, owing to the lack of opportunities for communication and the duties devolving upon appellant as sheriff of Garfield county, there had been no further communication between him and his attorney about the matter, but that he thought he had a good defense, and wanted to make it. He further stated that he was not personally interested in the matter, and had no interest, except "to be sure that things were done right," and before judgment he requested respondent's attorney to call the court's attention to the demurrer, and asked that the same be regularly filed in the case. Respondent's attorney refused to do this, and made his proof and took judgment by default against appellant. During all of this time the attorney for appellant was ignorant of what had transpired, but supposed that the demurrer was filed in the case, and was pending upon the issue of law presented thereby. Appellant's attorney also had assumed that the court in Garfield county had adjourned before the time that the judgment by default was entered against his client. A few days thereafter, and after the adjournment of the court, appellant's attorney learned of the judgment by default and of the proceedings had, and thereafter, on April 3d, and before the court held another session in Garfield county, he filed a motion, supported by affidavit and an answer on the merits duly verified, to set aside and vacate the judgment entered by default against appellant, on substantially the following grounds: That the default was improperly entered, because a demurrer was on file at the time it was entered; that the same was obtained through mistake, inadvertence, and excusable neglect of appellant and his attorney, and through the concealment and misrepresentation of respondent's attorney; and that appellant had a good defense to the merits of the action. From the affidavits in support of the motion, in addition to the facts above set forth, it further appeared that the appellant had taken the property involved in this action, as sheriff of Garfield county, on an execution issued by the clerk of the district court of said county upon a judgment against one W. J. Jolly, Jr.; that the property was levied upon as the property of said Jolly, and was claimed by the respondent and taken from appellant on a writ of replevin in this action. It further appeared that the property at the time of the levy was in the possession of said Jolly, and appellant states in his affidavit in support of the motion, and in his answer tendered, that he verily believes he can show, if a trial be had, that said Jolly was the owner of said property, and that the same was subject to levy; that no answer or demurrer was sooner filed in the action because George B. Greenwood, appellant's attorney, lived at Beaver, Beaver county, and appellant lived at Panguitch, Garfield county, and they had no ready means of communication, and that appellant relied on said Greenwood, and said Greenwood, in good faith, believed that the service of the demurrer and the transmission thereof to the clerk would prevent a default in the action; that it always was the intention of both appellant and his attorney to appear in and defend the action. The answer tendered was sufficient in form and substance to meet the allegations of the complaint. Respondent's attorney also filed a counter affidavit, in which some of the facts above recited were stated somewhat differently; but, upon the whole, the facts are substantially as above outlined, except that a considerable part of the affidavit of respondent's attorney is devoted to an attempt to explain the merits of the case. The court, however, could not consider matters offered by respondent going to the merits. If appellant presented a good and meritorious defense on paper, the only way to meet it would be to do so at the trial of the case, and not by affidavit. The merits must be tried out in the regular way. (1 Black on Judgments, section 351, and cases there cited.) The court, upon considering the motion, and the affidavits in support thereof, to set aside the default and vacate the judgment, refused to do so; and the errors assigned are all based upon the action of the court in this respect.

It is contended by appellant that the default was irregularly entered, in that the service of the demurrer on the attorney for respondent in the manner stated was sufficient to prevent a default. Is this contention sound? To determine this question, we have examined a large number of cases from other states, but, in view of the variant statutes and rules of court, the decided cases have afforded, and can afford, but little aid in arriving at a correct solution under our statute upon the subject. We will therefore attempt a solution of the question in the light of what we deem a fair and reasonable construction of our own statutes regulating the practice in this respect. By section 2939, Rev. St. 1898 a party to an action served with a summons within the county where the action is planted must appear in and defend the same within twenty days after service, or suffer judgment to be taken against him in accordance with the prayer of the complaint. Section 2999 provides that "all pleadings subsequent to the complaint must be filed with the clerk and copies thereof served upon the adverse party or his attorney." Section 3331 provides that service or notices or papers may be made on the attorney, or, if he is absent from both his office and residence, by leaving the same at his residence with some person of suitable age and discretion, or, if his residence is unknown, then by depositing the same in the post office, directed to him. Section 3332 provides that in certain cases service may be made by mail, and section 3333 makes the service complete at the time of the deposit in the post office. It is further provided in the last section that if the act is to be performed by the person served within a given number of days after such service, and such person resides at a place other than the person serving the notice and where the notice is mailed, then the person served has one day for each twenty-five miles' distance between the place of deposit and the place of his residence to perform such act. It will be observed that these latter sections apply to service of notices or papers only. Moreover, subdivision 2 of section 3179, within which this case falls, permits a default to be entered where...