Elstermeyer v. City of Cheyenne

Citation120 P.2d 599,57 Wyo. 421
Decision Date05 January 1942
Docket Number2198
PartiesELSTERMEYER v. CITY OF CHEYENNE ET AL
CourtWyoming Supreme Court

APPEAL from the District Court, Laramie County; H. R. CHRISTMAS Judge.

On petition for rehearing. For former opinion, see 57 Wyo. 256 116 P.2d 231.

Rehearing denied.

Edwin W. Baron of Cheyenne for respondent.

RINER Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

One of the appellants, Edwin W. Baron, has filed a petition for a rehearing in this cause. It is again urged that no facts were disclosed in plaintiff's amended petition setting out a meritorious defense to the City's attempted foreclosure of its alleged lien for the improvement assessment. The question at once arises what should be regarded as a meritorious defense. I Black on Judgments (2d Ed.) 540, Sec. 348, says that:

"The defense, it is said, must be meritorious. By this we mean that it must be substantial and not merely technical, fair and honest and not unconscionable."

In Russell v. Foley, 278 Mass. 145, 179 N.E. 619, the court, discussing this question, remarked:

"The petitioner in such a proceeding must show that he has a substantial and meritorious cause which requires further inquiry or trial in the courts. Such a cause means one worthy of judicial investigation because raising a material question of law meriting discussion and decision, or a real controversy as to essential facts arising from conflicting or doubtful evidence."

The view expressed in 1 Freeman on Judgments (5th Ed.) 567, Sec. 287, is that:

"By a defense on the merits is meant one which has merits that the law recognizes and to which it will give effect, and which if established would produce a materially different result."

The Supreme Court of Colorado in Gumaer v. Bell, 51 Colo. 473, 119 P. 681, discusses this subject in this language:

"The defendant must also show a meritorious defense to the action. It is sufficient to show that the defense is prima facie meritorious, and must be stated so that the court will be enabled to see that it is not frivolous. Where a meritorious defense is shown to part of plaintiff's cause of action, it is sufficient. 6 Ency. Pl. & Pr. 185-188. It is said that, when a sworn answer is filed, it will be accepted as a sufficient affidavit of merits, and it will be examined by the court only to determine whether it is frivolous and not to ascertain whether it will prevail if established on a new trial, unless it is apparent that it cannot possibly prevail. Id. 188. In line with these expressions, our Court of Appeals, on the question of showing merits said: 'There must be sufficient showing to the court to demonstrate the possibility, at least, that, if the judgment was vacated and a new trial had, the result would be different.' Donald v. Bradt, 15 Colo.App. 414, 416, 62 P. 580, 581. From this it is seen that if the showing is of a defense that is substantial, not technical, meritorious, not frivolous, and that may change the result upon trial, it is sufficient."

Citing many authorities the Supreme Court of Nebraska in Hartford Fire Insurance Co. v. Meyer, 30 Neb. 135, 46 N.W. 292, in similar vein declares that:

"It must appear that, on a re-examination and retrial of the cause, the result would probably be different."

Tested by these rules did the plaintiff's amended petition herein set forth facts which would have produced a materially different result in the City's attempted lien foreclosure action against Mrs. Elstermeyer? We certainly think so. If the pleaded facts had been proven in that action, as they were in the cause before us, no judgment of foreclosure against Mrs. Elstermeyer could have been properly entered and she would have had the right to redeem the property involved from any such foreclosure proceeding. She was entitled to be properly and legally notified of the City's attempt to take her property from her in any foreclosure of its asserted lien. This, as indicated in the original opinion heretofore filed, was not done.

Additionally, it may be pointed out that notwithstanding the case of Citizens National Bank v. Union Central Life Insurance Co., 12 Ohio Cir. Ct. R. (N. S.) 401, from which quotation was made in the original opinion heretofore filed in the case at bar, there would appear to be substantial authority contrary to the view expressed in that decision, concerning the necessity of alleging a meritorious defense under circumstances such as appear herein.

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4 cases
  • Lake v. Lake
    • United States
    • Wyoming Supreme Court
    • June 24, 1947
    ... ... brief and also oral argument of Albert D. Walton of Cheyenne, ... POINTS ... OF COUNSEL FOR APPELLANT ... Courts ... have full control r its orders of judgments during the ... term at which they are made. Sioux City Seed Co. v ... Montgomery, 42 Wyo. 170, 291 P. 918; Kelley v ... Eidam, 32 Wyo. 271, 231 P ... various affidavits, by and on behalf of the plaintiff. In ... Elstermeyer vs. City of Cheyenne, et al., on ... rehearing, 57 Wyo. 421, 120 P.2d 599, the court cited a ... ...
  • Wunnicke v. Leith
    • United States
    • Wyoming Supreme Court
    • March 27, 1945
    ... ... and oral argument of Ray E. Lee, of Cheyenne, Wyoming ... POINTS ... OF COUNSEL FOR APPELLANT ... Attorney's ... fees are ... Abernathy, et al., v. Bonaparte, 166 Okla. 192, 26 ... P.2d 947; Elstermeyer v. City of Cheyenne, 57 Wyo ... 421, 120 P.2d 599 ... In ... Ballard Savings & Loan ... ...
  • National Supply Co. v. Chittim, 3175
    • United States
    • Wyoming Supreme Court
    • January 7, 1964
    ...by publication therefore meets the requirements of Rule 4(f). Plaintiff recognizes our holding in Elstermeyer v. City of Cheyenne, 57 Wyo. 256, 116 P.2d 231, 57 Wyo. 421, 120 P.2d 599, that a court may not enter a legal judgment where the requirements for affidavit by publication are not me......
  • Sandoval v. American Nat. Bank of Powell, 4234
    • United States
    • Wyoming Supreme Court
    • December 21, 1973
    ...in such manner as to make the defendant's question moot. In his argument concerning meritorious defense he cited Elstermeyer v. City of Cheyenne, 57 Wyo. 421, 120 P.2d 599, as authority for the reasoning that if it is determined he had a meritorious defense consideration must then be given ......

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