Domer v. Stone

• Decision Date: 28 April 1915
• Citation: 27 Idaho 279,149 P. 505
• Parties: S. P. DOMER, Appellant, v. WESLEY C. STONE, EMMA F. STONE and SAMUEL R. STERN, Respondents
• Court: Idaho Supreme Court

149 P. 505

27 Idaho 279

S. P. DOMER, Appellant, v. WESLEY C. STONE, EMMA F. STONE and SAMUEL R. STERN, Respondents

Supreme Court of Idaho

April 28, 1915

APPEARANCE-HOW MADE-NOTICE-DEFAULT-HOW VACATED.

1. Sec 4892, Rev. Codes, provides that "a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives written notice of appearance for him"

2. The written notice of appearance contemplated by said section is a statement in writing by the defendant or his attorney whereby the plaintiff is informed that the defendant has appeared, generally or specially, in the case and has submitted himself to the jurisdiction of the court.

3. A motion that a nonresident plaintiff be required to give security for costs is not an appearance as contemplated by said section.

4. In a case where such a motion has been made and such security has been given, if the defendant fails to appear, as provided in said sec. 4892 within the time specified in the summons, his default may be properly entered.

5. A nonresident plaintiff upon whom demand for security for costs has been made is not required to give notice to the defendant when such security is given, neither is the defendant, who has failed to appear, entitled to other or additional notice than that contained in the summons that the plaintiff will apply for a default against him.

6. When a default has been regularly and properly entered it can be vacated only upon a satisfactory showing being made that the defendant has a meritorious defense to the action and that he has failed to answer, or otherwise appear, by reason of mistake, inadvertence, surprise or excusable neglect.

7. In order to vacate a default it is incumbent upon the defendant to show that his mistake was one of fact and not of law, and the neglect of a lawyer to familiarize himself with the law governing the practice of the forum wherein his case is pending cannot be held to be excusable.

APPEAL from the District Court of the Second Judicial District for the County of Idaho. Hon. Edgar C. Steele, Judge.

Order vacating default and setting aside judgment. Reversed.

Order reversed and costs awarded to appellant. Petition for rehearing denied.

H Taylor and A. S. Hardy, for Appellant.

No appearance will stop the running of the time or the entry of a default except an answer; of course this answer may be an answer upon the merits or it may be a demurrer, which is an answer at law. But an answer in one of these ways must be made within the time provided. (Morbeck v Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 141 N.W 501, 47 L. R. A. N. S., 853; Donlan v. Thompson Falls Copper & Milling Co., 42 Mont. 257, 112 P. 445.)

In all of the following cases a default was held to have been properly entered without notice of the application for same, pending a motion of some sort in the case, but without answer having been made as required by statutes similar to ours: McDonald v. Swett, 76 Cal. 257, 18 P. 324; Ripley v. Astec Min. Co., 6 N.M. 415, 28 P. 773; Pennie v. Visher, 94 Cal. 323, 29 P. 711.

And in the following cases it has been held that a motion to quash the summons does not prevent the entry of a default: Mantle v. Casey, 31 Mont. 408, 78 P. 591; Garvie v. Greene, 9 S.D. 608, 70 N.W. 847; Shinn v. Cummins, 65 Cal. 97, 3 P. 133; Risher v. Morgan, 56 Ind. 172; Higley v. Pollock, 21 Nev. 198, 27 P. 895, 899.

No notice of the application for a default is ever required. (Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

"Courts will not readily afford relief from one's own fault or error of judgment." (Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Vollmer Clearwater Co. v. Grunewald, 21 Idaho 777, 124 P. 278; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Pearce v. Butte Elec. Ry. Co., 40 Mont. 321, 106 P. 563; Redding Gold etc. Min. Co. v. National Surety Co., 18 Cal.App. 488, 123 P. 544; Peterson v. Crosier, 29 Utah 235, 81 P. 860; Shearman v. Jorgensen, 106 Cal. 483, 39 P. 863; Myers v. Landrum, 4 Wash. 762, 31 P. 33; Harr v. Kight, 18 Idaho 53, 108 P. 539.)

Reed & Boughton, S. R. Stern and W. N. Scales, for Respondents.

The power of the court should be freely and liberally exercised under the statute to mold and direct these proceedings so as to dispose of cases upon their substantial merits. (Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; Humphreys v. Idaho G. M. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Jergins v. Schenck, 162 Cal. 747, 124 P. 426; O'Brien v. Leach, 139 Cal. 220, 96 Am. St. 105, 72 P. 1004.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

On February 25, 1914, the appellant filed in the district court of the second judicial district in and for Idaho county his complaint against the respondents in a suit to quiet title to 160 acres of land situated in said county. Summons was thereupon duly issued and, upon proper showing, it was ordered that personal service of the summons be made upon the respondents outside the state of Idaho in lieu of publication thereof. It appears from the record that personal service of said summons was made upon the respondents in the city of Spokane, Washington, on the 30th day of March, 1914. On April 22, 1914, the respondents filed a motion, supported by an affidavit, that the appellant be required to give security for costs upon the ground that he was a nonresident of the state of Idaho, and upon May 5, 1914, a cost bond in the sum of $ 300 was filed in said cause by the appellant. On May 19, 1914, neither of said respondents having answered, demurred or appeared otherwise than as above stated, their default was entered by the clerk of the court, and thereafter and on the 25th day of May, 1914, the court having heard and considered appellant's proof, decree was entered as prayed for in the complaint. Thereafter and on June 3, 1914, the respondents moved the court to vacate, set aside and relieve them from the judgment and decree taken as above stated, said motion being based on the ground of mistake, inadvertence, surprise and excusable neglect on the part of said respondents and of each of them. Said motion was supported by the affidavit of Samuel R. Stern, one of the respondents, was accompanied by an answer to said complaint and was based upon the facts disclosed by said affidavit and answer and upon the records and files of the action. The motion was opposed by the appellant, and two affidavits by H. Taylor, Esq., of counsel for the appellant, were filed in opposition thereto. Upon the showing so made and upon the hearing of argument the trial judge, on September 30, 1914, made an order that the said motion be granted, that the respondents and each of them be relieved from said judgment and decree, that the said default be vacated and the judgment be set aside and that said action be tried upon its merits. From which order, so made and entered, this appeal is prosecuted.

Under the practice prevailing in Idaho an application to vacate a default may be based upon one of two grounds, or upon both:

1. That the default has been improperly or prematurely entered;

2. That while the default has been regularly and properly entered, the defendant has failed to answer or otherwise appear by reason of mistake, inadvertence, surprise or excusable neglect.

Both of these grounds are relied upon by respondents in this case. They insist that their motion to require appellant to give security for costs amounted to an appearance as defined by sec. 4892, Rev. Codes, which provides, in part, as follows:

"A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney gives written notice of appearance for him."

Respondents contend that, having appeared, they were entitled to notice that appellant would move for a default. In this respondents are in error. The written notice of appearance contemplated by said section is a statement in writing by the defendant or his attorney whereby the plaintiff is informed that the defendant has appeared, generally or specially, in the case and has submitted himself to the...