Donlan v. Thompson Falls Copper & Milling Co.

• Decision Date: 29 November 1910
• Citation: 112 P. 445,42 Mont. 257
• Parties: DONLAN v. THOMPSON FALLS COPPER & MILLING CO. et al.
• Court: Montana Supreme Court

112 P. 445

42 Mont. 257

DONLAN v. THOMPSON FALLS COPPER & MILLING CO. et al.

Supreme Court of Montana

November 29, 1910

Appeal from District Court, Sanders County; Henry L. Myers, Judge.

Suit by Edward Donlan against the Thompson Falls Copper & Milling Company and others. From an order denying defendants' motion to vacate and set aside a default judgment, they appeal. Affirmed.

H. C Schultz and Walsh & Nolan, for appellants.

Harry H. Parsons, A. S. Ainsworth, and James M. Self, for respondent.

SMITH J.

This is an appeal from an order of the district court of Sanders county, denying the defendants' motion to vacate and set aside a judgment by default.

The action was brought to establish plaintiff's alleged prior right to the use of certain waters of Thompson river; the complaint alleging that defendants have interfered therewith Both temporary and permanent injunctive relief and general relief was prayed for. The summons was personally served on all of the defendants on August 17, 1909. On the same date a temporary restraining order was issued and served. On September 4, 1909, all of the defendants, by their attorney served and filed a notice that on September 15, 1909, they would move the court for an order dissolving and vacating the injunction order theretofore granted. This notice was accompanied by the affidavits of the defendants Wenham and Hurlburt. The affidavit of Wenham concludes thus: "Wherefore, affiant prays for the vacation and dissolution of said restraining and injunctional order, or for a good and sufficient undertaking therefor, and for such other and further relief as to the court shall seem meet and proper." On September 8, 1909, the default of the defendants was entered by the clerk, and on September 30, 1909, they gave notice that on October 6, 1909, they would move the judge for an order vacating and setting aside their default and extending the time "for 20 days from the date of the hearing of said application and motion for the defendants, or any of them, to appear and further plead in the above-entitled action." Accompanying the notice was the motion referred to and an affidavit by the attorney. Afterwards, presumably on October 6th, the motion to set aside the default was denied; on October 11th plaintiff presented proof, and a judgment was entered substantially as prayed for. On October 30th, the defendants gave notice of a motion, to be made on November 5th, to set aside the default and judgment "and for an order extending the time for 20 days from the hearing of said application and motion for the defendants, or any of them, to appear and answer in the above action." This notice was accompanied by the affidavits of Wenham, Hurlburt, and the attorney. The affidavit of Wenham, who is the vice president and secretary of the defendant corporation, alleges that, when the summons, complaint, and restraining order were served, they were turned over to the attorney, with the request that he take legal measures to dissolve the order; that he agreed to look after the rights of the defendant corporation, which promise defendant relied on, affiant believing that all necessary steps would be taken to obtain a dissolution of the order, and the defendants believing that they had until September 15, 1909, to appear and defend the action on its merits; that on September 15th defendants learned for the first time that default had been taken, and they believed that the motion to dissolve the injunction was such an appearance as would prevent the entry of default; that their failure to enter any other appearance arose entirely from that belief. The affidavit of the attorney is to the effect that he believed his notice of motion to dissolve the temporary restraining order was such an appearance as would prevent a default being taken, and that he so advised his clients. The affidavits show that the Thompson Falls Copper & Milling Company is the only defendant interested in the result of the litigation. On January 17, 1910, an order was made denying the second motion to set aside the default, and defendants have appealed from the order.

Did the court abuse its discretion in denying the application to set aside the default? It is contended by counsel for the appellants that the notice of motion to vacate the temporary restraining order, together with the affidavits accompanying the same, constituted such appearance as would prevent a default being taken. It certainly is not in accordance with the practice heretofore existing, to regard such an appearance, if it be an appearance at all, as having any effect upon the running of the time given the defendant to answer, demur, or make a motion in the main action. The office of a preliminary injunction is merely to preserve the status quo until, upon final hearing, the court may grant full relief. It is unnecessary in this case to distinguish between a temporary restraining order and an interlocutory injunction. Both are merely provisional in nature and do not conclude a right. They are simply incidental to the main issue to be tried. Mr. High, in his work on Injunctions (4th Ed.) p. 8, says: "It is to be constantly borne in mind that in granting temporary relief by interlocutory injunction, courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the property or rights in issue in statu quo, until a hearing upon the merits, without expressing, and, indeed, without having the means of forming, a final opinion as to such rights." We are well satisfied that the main action, if we may employ the distinguishing term, and the provisional remedy, are so far different in the respective ends sought to be accomplished, that an actual motion to dissolve the injunction could not be construed as an appearance in the action. As well might it be said that a motion to make the complaint more definite and certain would have the effect of staying the operation of the restraining order. But it is contended that no motion was ever made to dissolve the order. No formal motion was made. As we have seen, however, the affidavit of Wenham concludes with a prayer that the order be dissolved, or that an additional undertaking be exacted. The method of procedure adopted is, to say the least, novel. But we may treat the affidavit as a motion, and, as already indicated, such holding can avail the defendants nothing.

But let us suppose that the notice of motion, with the accompanying affidavit of Wenham, constituted an appearance in the main action. The result is the same. The summons was served on August 17th, and the notice on September 4th. On September 7th the defendants were all in default. What warrant was there for believing that they could extend the time to answer, demur, or make a motion, until September 15th, by giving notice that they would move to dissolve the restraining order on that date? If they could thus enlarge their time to answer, they could as well extend it until any other date. The mere appearance of a defendant will not prevent his default being entered.

Section 6719, Rev. Codes, provides that judgment by default may be had, if the defendant fail to answer the complaint or to challenge the jurisdiction of the court, as follows: "2. In actions [other than those arising upon contract for the recovery of money or damages only], if no answer, demurrer, motion, or special appearance, coupled with a motion, has been filed with the clerk of the court within the time specified in the summons or such further time as may have been granted, or within twenty days after a motion to quash or set aside the service of summons, or any motion challenging the jurisdiction of the court, has been denied, the clerk must enter the default of the defendant."

This court, in 1904, in the case of Mantle v. Casey, 31 Mont. 408, 78 P. 591, held that under section 1020 of the 1895 Code of Civil Procedure, then in force, a special appearance for the purpose of moving to quash the service of summons did not extend the time for answering to the merits. The Ninth Legislative Assembly (Laws 1905, c. 59) thereupon amended paragraph 2 of the section, by adding thereto the words, "demurrer, motion, or special appearance, coupled with a motion," after the word "answer," where it first appears, and the following after the word "granted," "or within twenty days after a motion to quash or set aside the service of summons, or any motion challenging the jurisdiction of the court." The amended law is now paragraph 2 of section 6719, Rev. Codes, supra. It will therefore be seen at once that whereas, under the old law, nothing but an answer (or possibly a demurrer) would arrest the running of the time, under the law as amended there are several means of accomplishing that end. The first is by filing an answer or demurrer to the complaint; the second is by a motion filed in the main action, such a motion as will constitute a general appearance; and the third is by special appearance, coupled with a motion. As the complaint and answer present issues of fact, and the demurrer raises an issue of law, so also must the general appearance motion, unless it be merely a request for additional time, in some way attack the complaint. In other words, it must be a motion the granting of which would be inconsistent with the idea that plaintiff was entitled to recover a judgment by default upon the complaint as filed.

It cannot be said that defendants were entitled to notice of application for a default, even though the notice of motion to dissolve the preliminary injunction could be construed as a general appearance in the main action. There was no answer demurrer, or motion attacking...