Franklin County v. Bannock County

• Decision Date: 10 March 1916
• Citation: 28 Idaho 653,156 P. 108
• Parties: FRANKLIN COUNTY, Appellant, v. BANNOCK COUNTY, Respondent
• Court: Idaho Supreme Court

156 P. 108

28 Idaho 653

FRANKLIN COUNTY, Appellant, v. BANNOCK COUNTY, Respondent

Supreme Court of Idaho

March 10, 1916

JUDGMENT-MOTION TO SET ASIDE-INADVERTENCE AND EXCUSABLE NEGLECT-DISCRETION OF JUDGE OR COURT.

1. Under the provisions of sec. 4229, Rev. Codes, the court may in the furtherance of justice, and upon such terms as may be proper, relieve a party from a judgment, order or other proceeding taken against him through his mistake inadvertence, surprise or excusable neglect.

2. Held, under the facts of this case, that the court did not abuse its discretion in setting aside the judgment.

[As to opening and vacating judgments, see note in 52 Am.St. 795]

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. M. Stevens, Judge.

Action to declare boundaries between portions of two counties. Judgment for the plaintiff. Motion to set aside judgment. Granted. Affirmed.

Motion set aside, action affirmed, with costs in favor of the respondent county.

A. W Hart, for Appellant.

The question is, has the district court the authority on its own motion to grant a new trial upon grounds other than those named in sec. 4444, Sess. Laws 1911, chap. 118, amending sec 3529, Laws of Idaho, 1901. (Stevens v. Northwestern Stage Co., 1 Idaho 604; Simpson v. Pioneer Irr. Dist., 17 Idaho 435, 106 P. 1; State v. Davis, 8 Idaho 115, 66 P. 932; State v. Rice, 7 Idaho 762, 66 P. 87.)

Where the application for new trial is made under the provisions of sec. 4439, it must appear from the evidence that the party could not, with reasonable diligence, have discovered the evidence and produced it at the trial. (Hall v. Jensen, 14 Idaho 165, 93 P. 962.) Due diligence must be shown. (State v. Williams, 12 Idaho 483, 86 P. 53; State v. Davis, 6 Idaho 159, 53 P. 678.) Due diligence has not been shown in the case at bar.

Defendant's counsel cannot be relieved from the consequence of his inattention and neglect by the court, of its own motion, going outside the terms of the statutes and granting a new trial, not upon the grounds specified in the statutes, but upon the grounds included in defendant's motion for a new trial. (Gould v. Duluth & Dakota Elevator Co., 2 N.D. 216, 50 N.W. 969; Flugel v. Henschel, 6 N.D. 205, 69 N.W. 195; Clement v. Barnes, 6 S.D. 483, 61 N.W. 1126; Townley v. Adams, 118 Cal. 382, 50 P. 550; Mizener v. Bradbury, 128 Cal. 340, 60 P. 928; Eades v. Trowbridge, 143 Cal. 25, 76 P. 714; Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908.)

C. D. Smith and McDougall & Jones, for Respondent.

It is clearly within the discretion of the trial judge to vacate a judgment entered by mistake, etc. (Sec. 4229, Rev. Codes.)

Application for relief under this section is addressed to the sound legal discretion of the trial judge. (Pittock v. Buck, 15 Idaho 47, 96 P. 212; Kraft v. Greathouse, 1 Idaho 254.)

The granting or refusing of an order made upon application under this section rests on sound legal discretion of the court, and unless the appeal to such discretion has been abused, the order will not be disturbed on appeal. (Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Holzeman & Co. v. Henneberry, 11 Idaho 428, 431, 83 P. 497; Western Loan etc. Co. v. Smith, 12 Idaho 94, 103, 85 P. 1084; Watson v. San Francisco etc. R. Co., 41 Cal. 17.)

COWEN, District Judge. Sullivan, C. J., and Morgan, J., concur.

OPINION

COWEN, District Judge.

This action was brought by Franklin county against Bannock county, whereby the plaintiff county sought to have the boundary line between the two counties declared by decree of the court. The defendant county answered, denying all of the material allegations of the complaint. The cause was tried by the court without a jury and oral and documentary evidence was introduced on the trial. Findings of fact and conclusions of law were expressly waived by respective counsel, and the court thereupon ordered judgment to be entered in favor of the plaintiff county against the defendant county in accordance with the prayer of plaintiff's complaint, except as to the damage and taxes collected by the defendant county.

Thereafter Bannock county moved to vacate and set aside the said judgment on the ground that the same was taken by mistake, inadvertence, surprise and excusable neglect of the defendant county. Said motion was heard upon affidavits and counter-affidavits and the records and files, and said motion was granted and the judgment set aside, and the cause held for trial at the next term of court. The appeal is from the order granting said motion.

It is contended by counsel for respondent that the motion to vacate the judgment was made under the provisions of sec. 4229, Rev. Codes, which provides, among other things, that a court may, in the furtherance of justice, relieve a party or his legal representative, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.

In the order granting said motion to vacate and set aside such judgment, among other things, it is stated as follows: "And it satisfactorily appearing that said judgment rendered in the above cause on the 10th day of December, 1913, was made and rendered through the mistake and excusable neglect of the said defendant, Bannock County, and...