Dellwo v. Petersen

• Citation: 203 P. 472,34 Idaho 697
• Parties: NICHOLAS DELLWO, Appellant, v. JOSUA PETERSEN and JOHN W. BOOTHE, Respondents
• Decision Date: 28 December 1921
• Court: Idaho Supreme Court

203 P. 472

34 Idaho 697

NICHOLAS DELLWO, Appellant, v. JOSUA PETERSEN and JOHN W. BOOTHE, Respondents

Supreme Court of Idaho

December 28, 1921

PRACTICE-RENEWAL MOTION-RES ADJUDICATA-JUDICIAL DISCRETION-VACATION OF JUDGMENT-APPLICATION OF STATUTE.

1. A renewal motion, since it involves a question of practice, may be filed with the permission of the court, and the decision of the court upon the first motion does not necessarily make the matter res adjudicata.

2. Where a motion is made to vacate a judgment, which motion is denied by the trial court, and thereafter a new motion for the same relief is made upon substantially the same state of facts presented in the previous motion, it is discretionary with the court to refuse to entertain the second motion, and in the absence of a clear abuse of such discretion, such action by the trial court will not be disturbed on appeal.

3. The object and purpose of C. S., sec. 6726, is to further the administration of justice, in order that the rights of the parties upon the merits may be determined, and to that end to grant relief from excusable neglect in cases where diligence is shown in applying promptly for the relief sought, provided the opposing party be not deprived thereby of any advantage to which he may properly be entitled.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Judgment of dismissal for failure to furnish security for costs. Reversed.

Judgment of dismissal reversed, and judgment of dismissal vacated and set aside. Costs awarded to appellant.

Robert D. Leeper, for Appellant.

As a general rule, if there is any reasonable doubt in the matter it will be resolved in favor of the granting of the application to set aside the judgment and allowing the trial upon the merits of the case. (Humphreys v. Idaho Gold Mines etc. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A N. S., 817.)

A refusal to set aside a judgment on meritorious defense shown on a proper equitable ground may amount to an abuse of discretion. (15 R. C. L. 720; Hanthorn v. Oliver, 32 Ore. 57, 67 Am. St. 518, 51 P. 440; Douglas v. Badger State Mine, 41 Wash. 266, 83 P. 178, 4 L. R. A., N. S 196; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Tidwell v. Witherspoon, 18 Fla. 282; Leaming v. McMillan, 59 Ark. 162, 43 Am. St. 26, 26 S.W. 820; Burns v. Scooffy, 98 Cal. 271, 33 P. 86.)

"Where no substantial prejudice appears to have arisen from the delay, a court should open the default and bring the case to trial." (Citizens' Nat. Bank v. Branden, 19 N.D. 489, 126 N.W. 102, 27 L. R. A., N. S., 858.)

An order denying a motion does not necessarily make the matter res adjudicata, and the said matter may be renewed by subsequent motion, which motion may be acted upon by the trial judge in his discretion; the hearing of it by him is sufficient to constitute permission, and it is not necessary to get formal permission to file and present the renewed motion. (Clopton v. Clopton, 10 N.D. 569, 88 Am. St. 749, 88 N.W. 562; Fiske v. Hicks, 29 S.D. 399, Ann. Cas. 1914D, 971, 137 N.W. 424.)

Potts & Wernette, for Respondents.

An application to set aside a default is addressed to the sound, legal discretion of the trial court, and unless it is made to appear that such discretion has been abused, the order made will not be disturbed on appeal. Nuestel v. Spokane Intl. Ry. Co., 27 Idaho 367, 149 P. 462; Vollmer-Clearwater Co. v. Grunewald, 21 Idaho 777, 124 P. 278; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Harr v. Kight, 18 Idaho 53, 108 P. 539; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65; Kissler v. Budge, 24 Idaho 246, 133 P. 125.)

"A motion once denied on the merits cannot be reviewed on the same state of facts without leave of the court." (28 Cyc. 18; Stacy v. Stephen, 78 Minn. 480, 81 N.W. 391; Riggs v. Pursell, 74 N.Y. 370; Adams v. Lockwood, 30 Kan. 373, 2 P. 626; Freeman on Judgments, par. 326; Ford v. Doyle, 44 Cal. 635.)

Defaults due to carelessness and negligence of an attorney will not be vacated. (Nelson v. McGoldrick Lumber Co., 30 Idaho 451, 165 P. 1125; Valley State Bank v. Post Falls etc. Co., 29 Idaho 587, 161 P. 242; Domer v. Stone, 27 Idaho 279, 149 P. 505.)

BUDGE, J. Rice, C. J., and McCarthy and Lee, JJ., and McNaughton, District Judge, concur. Dunn, J., did not sit at the hearing nor participate in this opinion.

OPINION

BUDGE, J.

This is an action for damages on account of alleged fraud and deceit in making an exchange of lands.

Appellant instituted this action in the district court on August 18, 1916, against these respondents and three others. The trial resulted in a judgment of nonsuit against appellant on March 30, 1917, which judgment was reversed on appeal to this court, on March 25, 1919, as to these respondents, and the cause was remanded for trial. (Dellwo v. Petersen, 32 Idaho 172, 180 P. 167.) In the meantime, appellant moved to Montana, and on September 9, 1919, respondents' counsel served upon Robert D. Leeper, Esq., one of appellant's attorneys, a notice to furnish security for costs, as provided by C. S., sec. 7221. On October 13, 1919, proof being submitted by affidavit of the clerk of the district court that no undertaking for costs had been filed by appellant, the action was, on motion, dismissed and judgment of dismissal entered. On October 14, 1919, appellant moved to set aside the judgment of dismissal under the provisions of C. S., sec. 6726, which motion was supported by an affidavit by Leeper, wherein he alleges that he received a proper cost bond from appellant on October 2, 1919, but that he did not file the same within the time limited by C. S., sec. 7222, due to the serious illness of all the members of his family, by reason of which he was unable to attend to business for approximately one month, and that the failure to file the cost bond within the time was due to his excusable neglect; together with an affidavit by Dr. John T. Woods, corroborating Leeper's affidavit as to the illness of his family, and an affidavit by L. G. Nash, one of appellant's attorneys, residing at Spokane, Washington, alleging that the cost bond was in Leeper's hands prior to the expiration of the time for filing the same, but that he (Nash) had no notice of the demand for the cost bond prior to the dismissal of the action.

In opposition to the motion, affidavits were filed by C. H. Potts, Esq., one of respondents' attorneys, and by J. W. Booth, the latter stating in his affidavit that he frequently saw attorney Leeper on the streets of Coeur d'Alene between September 9 and October 13, 1919, and that he delivered an address before the Chamber of Commerce of Coeur d'Alene at noon, October 13th. None of the facts alleged in the affidavits of Potts or Booth were denied upon the hearing, and on November 11, 1919, the court denied the motion to set aside the judgment of dismissal.

On December 11, 1919, appellant made what is designated as a renewed motion to vacate the judgment, supported by the affidavits of Nicholas Dellwo, George F. Weeks, Robert H. Elder, Gladys Gager and Robert D. Leeper, with which the undertaking for costs was for the first time presented.

Respondents objected to the consideration of this motion, and moved to strike it from the files, first, for the reason that it was filed without leave of court, and, second, that it contained no new matter not heard or considered on the original motion, or any facts which had arisen since the filing thereof.

The motion to strike was granted. This appeal is from the judgment of dismissal, from the order denying the motion to vacate the judgment, and from the order striking the renewed motion from the files.

We will first dispose of the action of the court in striking the renewed motion from the files. A renewal motion may be filed with the permission of the court. It involves a question of practice, and the decision of the first motion is not necessarily res adjudicata. As was held in Belmont v. Erie Ry. Co., 52 Barb. (N.Y.) 637: "It is well settled that whatever can be done upon motion to the court may, by the court, upon further motion by either party, be altered, modified or wholly undone."

The rule followed in many jurisdictions is that a new motion for the same relief is a matter of right, and may be made without leave of court, when the motion is made upon a new state of facts, but when made upon the same state of facts as presented upon a previous motion, that the hearing of such new motion is discretionary with the court and leave must be obtained to hear the same. While in other jurisdictions it is held that it is within the sound discretion of the court to hear a second motion not upon the same state of facts, and before such second motion may be heard, leave of court must be obtained.

The affidavits filed in support of the renewed motion are in the nature of rebuttal to the affidavits filed in opposition to the granting of the first motion. There is no showing that at the time of the hearing of the first motion appellant was not in possession of all of the facts set out in these affidavits, and no excuse is offered for failure to present them in support of the first motion. The second motion was filed without leave of court, and it was within the sound discretion of the trial court to refuse to entertain it. In the absence of a clear abuse of such discretion, we are not inclined to reverse the action of the court in sustaining the motion to strike the renewed motion from the files.

As was said in Adams v. Lockwood, 30 Kan. 373, 2 P. 626 "After a motion has been heard and overruled, the moving party has no right to...