Day v. Burnett

• Decision Date: 05 March 1924
• Citation: 224 P. 427,38 Idaho 620
• Parties: ERNEST G. DAY, Respondent, v. CLAUDE E. BURNETT, Appellant
• Court: Idaho Supreme Court

224 P. 427

38 Idaho 620

ERNEST G. DAY, Respondent, v. CLAUDE E. BURNETT, Appellant

Supreme Court of Idaho

March 5, 1924

VACATING JUDGMENT AND SETTING ASIDE DEFAULT-EMPLOYMENT OF ATTORNEY - MISTAKE, SURPRISE, INADVERTENCE AND EXCUSABLE NEGLECT-DISCRETION OF COURT.

1. That part of C. S., sec. 6726, as amended by chapter 235, 1921 Session Laws, providing for relief from default occasioned by the negligence of attorney, cannot be invoked where the party asking for relief was not represented by an attorney.

2. 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 denying such application will not be disturbed on appeal.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Defendant moved to set aside default and vacate judgment. Motion was denied and defendant appealed. Affirmed.

Judgment affirmed. Costs awarded to respondent.

P. E Cavaney, for Appellant.

Where an attorney because of mistake or misunderstanding, or excusable neglect, withdraws from a case, leaving his client unprotected, the court will set aside the judgment. (Utah S. Bank v. Trumbull, 17 Utah 198, 53 P. 1033; Nichells v. Nichells, 5 N.D. 125, 57 Am. St. 540, 64 N.W. 73, 33 L. R. A. 515; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. 641, 36 P. 759; Adams v. Rathbun, 14 S.D. 552, 86 N.W. 629.)

Under C. S., sec. 6726, as amended by chap. 235, 1920 Sess. Laws the court, as a matter of law, should have vacated and set aside the said judgment. (Brainard v. Coeur d'Alene A. M. Co., 35 Idaho 742, 208 P. 855.)

In this case no showing is made that the appellant Burnett was not diligent and acting as an ordinarily prudent man would have acted under similar circumstances, and he had a right to rely on the statements made to him by the different counsel and by the clerk of the court. (Reilley v. Kincaid, 181 Iowa 615, 165 N.W. 80; Simpkins v. Simpkins, supra; Brainard v. Coeur d'Alene A. M. Co., supra.)

Richards & Haga and H. B. Walker, for Respondent.

The failure to employ counsel or to move to set aside a default for some five months after service of summons upon the sole ground of the lack of funds with which to employ counsel cannot be a legal ground for setting aside a default or judgment. (Kynaston v. Thorp, 29 Idaho 302, 158 P. 790; Harr v. Kight, 18 Idaho 53, 108 P. 539; Vollmer Clearwater Co. v. Grunewald, 21 Idaho 777, 124 P. 278.)

"The defendant must show that his mistake was one of fact and not of law." (Domer v. Stone, 27 Idaho 279, 149 P. 505.)

"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 on appeal." (Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65, and cases cited.)

BUDGE, J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, J.

This is an action brought to recover upon a promissory note. Appellant was served with copy of complaint and summons on July 22, 1921 in Ada county, where the action was brought. A demurrer was evidently filed, although the same does not appear in the record. On August 20, 1921, the demurrer was withdrawn and fifteen days allowed within which to answer. On September 29, 1921, default was entered for failure to answer and judgment awarded in favor of respondent on October 8, 1921. On December 27, 1921, appellant, through his attorney, filed a motion to set aside the default, supported by the affidavit of appellant, together with appellant's verified answer. On the same day the motion was denied, but the court, on application of appellant, granted the latter until noon, December 29, 1921, to make further showing. Thereupon additional affidavits were filed in behalf of appellant and on January 4, 1922, after further consideration, the court denied the motion to set aside the default and vacate the judgment. From this order this appeal is taken.

The only error assigned is the refusal of the court to set aside the default and vacate the judgment. Appellant seeks to have the default set aside and the judgment vacated under the provisions of C. S., sec. 6726, as amended by chapter 235, 1921 Session Laws, which provides, inter alia, as follows:

"The court may . . . . relieve a party . . . . 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 at 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 any 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 such judgment, order or proceeding and may, in its discretion, require the attorney guilty of such failure or neglect to pay the costs or expenses actually and necessarily occasioned to the opposite party by such failure or neglect, and may, in its discretion, also impose upon such attorney a penalty of not exceeding $ 100.00."

We are therefore called upon to determine whether or not the showing made by appellant was sufficient to justify the court in refusing to set aside the default and vacate the judgment.

From appellant's first affidavit it appears that on July 22, 1921, he called upon Messrs. Delana & Delana, attorneys, relative to said case and was informed at that time that they would be able to handle it for him but they notified him to the contrary shortly before the time for appearance had expired, and at that time one of the members of that firm requested Judge William M. Morgan, of the firm of Eldridge & Morgan, to file a demurrer in behalf of appellant, for the reason that the firm of Delana & Delana had certain business and professional relations with respondent, which precluded their representing appellant; that thereupon Judge Morgan, as a matter of accommodation to Messrs. Delana & Delana, filed a general demurrer; that the firm of Eldridge & Morgan was never at any time retained by appellant; that without the consent and against the wish of appellant the demurrer was withdrawn and appellant given fifteen days to answer; that appellant was never informed as to when he would be compelled to answer or otherwise plead until about the time the default was to be entered; that he was informed by the firm of Eldridge & Morgan that they could not handle the case and he thereupon requested the firm of Davidson & Davison, attorneys, to represent him and was informed that they could not do so unless certain conditions were complied with; that he proceeded diligently to meet their requirements but that default was entered against him before he was able to do so; that he called upon the clerk of the district court before default was entered and was informed by him that nothing further had been done in said cause; that he had no further information in the matter until default was entered against him.

In his second affidavit appellant alleges that default was entered against him on September 29, 1921,...