Eager v. Derowitsch

• Decision Date: 19 June 1951
• Docket Number: No. 2493,2493
• Citation: 232 P.2d 713,68 Wyo. 251
• Parties: EAGER, v. DEROWITSCH.
• Court: Wyoming Supreme Court

Page 713

232 P.2d 713

68 Wyo. 251

EAGER, v. DEROWITSCH.

No. 2493.

Supreme Court of Wyoming.

June 19, 1951.

John F. Raper, Sheridan, for appellant.

Henry A. Burgess, Sheridan, for respondent.

RINER, Justice.

This litigation arose in consequence of an automobile collision between a car driven by plaintiff, Eager, and one driven by the defendant, Derowitsch, on highway 87 between the town of Buffalo and the city of Sheridan. The accident, according to plaintiff's petition, occurred April 19, 1949. As a consequence of the collision plaintiff's car was damaged as he claims in the sum of $448.36.

Shortly after the accident, as claimed by Derowitsch, the parties represented at that time by the same counsel, who appeared in the District Court of Sheridan County, Wyoming, in connection with the action filed in that court and presently to be mentioned, agreed on a compromise settlement of the matter of damages to plaintiff's car, under the terms of which arrangement Derowitsch was to pay and did pay Eager the sum of $100.00 in full settlement of any and all claims which Eager could or would assert against said Derowitsch as a consequence of the collision aforesaid. This claim does not appear as the record before us now stands, to be controverted by affidavit or sworn testimony on the part of the plaintiff. At any rate Eager admits the payment to him of $100.00 as asserted by Derowitsch.

July 5, 1949, about two and one half months after the accident and after the alleged compromise settlement as described above had been had, counsel for Eager brought an action in the District Court of Sheridan County against Derowitsch asserting that Derowitsch was guilty of negligence in entering the highway over which Eager was driving the latter's auto so that Eager was unable to safely pass the car of the defendant which had been backed out upon the highway. As a consequence of the alleged carelessness and negligence of the defendant in operating his car thus, a collision between the two cars ensued. Plaintiff's car was damaged as he claims 'to the extent of $448.36' according to an itemized statement attached to plaintiff's petition and by reference incorporated therein. Plaintiff's petition then states that the defendant paid plaintiff in 'partial satisfaction of said damages but refused to pay the additional sum of $348.36 which is still due and owing,' and for which plaintiff prays judgment.

Summons was issued and served personally on Derowitsch on July 5, 1949. By that writ Derowitsch was notified to answer the plaintiff's petition 'on or before' August 6, 1949, and that unless he answered the plaintiff's pleading on that day 'said petition with all the matters and allegations therein contained' would be 'taken as true and judgment rendered accordingly.' August 6, 1949, was, of course, a Saturday and on the following Monday August 8, 1949, upon examination of the District Court file in this matter one William D. Redle, an attorney engaged in the practice of law in the City of Sheridan, acting for Henry A. Burgess, the attorney who it is claimed by defendant had engaged in the compromise negotiations above described, and at the request of said Henry A. Burgess, ascertained that there had been no answer or other pleading filed in said action as commanded by the writ aforesaid. As appears by Redle's affidavit in the record he thereupon presented to the presiding judge of the district court, Hon. James H. Burgess, the file in this matter and requested: 'That a default judgment be entered herein; that in support of the plaintiff's allegations as to damages, I did offer in the nature of proof to the Judge of this Court, an itemized repair bill signed by the co-owner of the Central Garage showing the itemized repairs necessary to the plaintiff's car and also showing the payment of $100.00 thereon leaving a balance of $348.36. That after an examination of said bill by the Judge of this Court, he did enter a default judgment in this matter.'

The date of this default and judgment rendered pursuant to Redle's request was August 8, 1949. It does not appear that any oral sworn testimony or other written evidence was produced before the district judge at the time the default judgment was asked for and rendered.

On August 29, 1949, counsel for defendant, Derowitsch, filed in said district court a motion to vacate the judgment rendered on August 8, 1949, as aforesaid. The grounds of said motion were in substance stated to be that the defendant had a good, sufficient and meritorious defense to said action and that defendant intended to defend said action: 'That after he was served with summons and a copy of the Petition filed herein he took the same to the law office of John F. Raper and retained the said John F. Raper to represent him in said matter, but due to a misunderstanding between said Defendant and his said attorney no answer or other pleading was filed within the time fixed in said summons and consequently a pretended default judgment was taken on the first Monday following the answer date in said summons' that the action aforesaid was filed in said court, summons issued on July 5, 1949, and judgment entered on August 8, 1949, all during the April 1949 term of said court and this motion to vacate the plaintiff's judgment was also filed and presented during the April 1949 term of said court; that said court has full authority and power to vacate such judgment and allow the defendant to answer or otherwise plead to plaintiff's petition; that said judgment should be vacated 'in furtherance of justice.'

'That said action is an action for damages growing out of an automobile accident which occurred on highway 87 between Sheridan, Wyoming and Buffalo, Wyoming on the 19th day of April, 1949 and no proper and sufficient proof of said damages, as alleged in Plaintiff's Petition was adduced or established at said hearing held on August 8, 1949, being the date of said pretended default judgment and said judgment is void and of no force and effect.'

This motion to vacate the judgment aforesaid was supported by the affidavit of the defendant and his attorney, John F. Raper. The affidavit of defendant's attorney is as follows: 'that on or about the 11th or 12th day of July he conferred with Alfred Derowitsch regarding the action which had been instituted in the District Court for Sheridan County, Wyoming against him by Alton E. Eager as Plaintiff; that the said Derowitsch delivered to affiant the Petition and summons which had been served upon him and left said documents in the office of your affiant; that he discussed said defense with your affiant and was advised by your affiant that he had a good defense to said action; however, your said affiant was of the impression that nothing further was to be done in connection with the defense of said action until your affiant had heard further from the said Derowitsch, but, the said Derowitsch is of the opinion that he had instructed your affiant to do all things necessary in connection with the defense of said action; that as a consequence of this misunderstanding between your said affiant and said Derowitsch and further on account of the press of other business at the time of the answer date fixed in said summons, no answer or other pleading was filed on or before said answer date; and, as a consequence thereof a pretended default judgment was entered in said case against the said Alfred Derowitsch on the 8th day of August, A.D.1949 for the full amount of Plaintiff's claim, to-wit: the sum of $348.36, together with the costs of the action taxed at $8.50; that in view of all of the circumstances in connection with this matter, this honorable Court should vacate said judgment and permit said Defendant to plead to Plaintiff's Petition and defend said action.'

The affidavit of the defendant is substantially similar to that of his counsel.

On April 13, 1950, shortly before the death of the presiding judge of said court, the motion to vacate said judgment was heard by the court, Hon. H. P. Ilsley, Judge of the 6th Judicial District sitting; oral arguments were presented by counsel for defendant and counsel for plaintiff; briefs were requested by the court and thereafter on May 31, 1950, the court entered its order and judgment denying and overruling the defendant's motion to vacate aforesaid, to which ruling defendant duly saved his exception. During the course of the argument on the motion to vacate, counsel for the defendant filed a motion for leave to amend his motion to vacate by attaching thereto the proposed answer which would have been filed if the court vacated said judgment. Leave to amend the motion as requested was apparently granted and defendant's proposed answer evidently was before the district court at the time said motion was ruled upon, with the result indicated above. The proposed answer omitting title and prayer is as follows:

'First Defense.

'1. Defendant, for his first defense, denies each and every paragraph, allegation and statement contained in Plaintiff's Petition filed herein, not hereinafter admitted or otherwise explained.

'Second Defense.

'1. Defendant, for his second defense, alleges that on or about the 19th day of April, 1949, while backing on to Highway 87 from a position where he had been parked near what is known as Kelly's Bar at Story, Wyoming, and prior to backing his said car on to Highway 87, he looked in both directions to see whether or not any cars were approaching and no cars at the time of his attempting to back on to said Highway were in sight, but before he completed the operation of backing his car on to said Highway and getting the same in the proper line of traffic, a car approached from the south being operated and driven by the Plaintiff herein, which car was traveling at a dangerous, reckless and unlawful rate of speed and at a speed in excess of sixty miles per hour, and said Plaintiff, after observing the Defendant...