Galbreath v. Aubert

Decision Date29 December 1944
Docket Number8470.
Citation157 P.2d 105,116 Mont. 490
PartiesGALBREATH v. AUBERT.
CourtMontana Supreme Court

Rehearing Denied March 30, 1945.

Appeal from District Court, Ninth District, Glacier County; R. M Hattersley, Judge.

Action by Susie H. Galbreath against J. C. Aubert, also known as Jack Aubert, to recover the possession of a truck and for damages for its wrongful detention. From an order setting aside a judgment by default and permitting defendant to answer, plaintiff appeals.

Reversed and remanded with directions.

MORRIS J., dissenting.

S. J Rigney, of Cut Bank, for appellant.

John J. Greene, of Cut Bank, for respondent.

ADAIR Justice.

The plaintiff Susie H. Galbreath instituted action against the defendant J. C. Aubert in the district court of Glacier county to recover possession of a Ford truck and for damages for its wrongful detention.

On January 23, 1942, summons and a copy of the complaint were personally served upon the defendant.

On July 16, 1942, defendant's default for failure to appear was entered by the clerk of the court on written praecipe by plaintiff made and filed on said date.

On March 2, 1943, plaintiff appeared before the court with his counsel and witnesses. A hearing was had where witnesses testified and the matter was submitted. Thereafter, on March 17, 1943, judgment for plaintiff was entered adjudging that plaintiff recover from defendant the possession of the truck and, in case delivery cannot be had, then for the sum of $1250, being the value thereof, together with $150 damages for its detention and for costs.

On May 19, 1943, the defendant moved "the court to set aside the default judgment entered herein on the 17th day of March, 1943, and to permit defendant to file answer herein." The motion was supported by affidavits and was made upon the ground that the judgment was taken against the defendant through his mistake, inadvertence, surprise or excusable neglect. A hearing was had and thereafter on June 17, 1943, the court made an order granting defendant's motion.

Plaintiff has appealed from such order which set aside the judgment and permitted defendant to answer.

Section 9187, Revised Codes 1935, grants courts discretion to "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; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." Under this clause "in no case" may the court grant relief to any party who delays his application therefor exceeding six months after the proceeding was taken against him.

The entering of a default by the clerk or the court, at the instance of the adverse party, is a "proceeding taken against" the party in default within the meaning of section 9187, Revised Codes, and it is the date of the entry of the default and not the date of the judgment subsequently entered that fixes the beginning of the six months within which the motion to set aside the default must be made. One who invokes the aid of the statute must act within the six-month period or his application for relief thereunder comes too late. As to the six-month limitation, the statute is inflexible. Kosonen v. Waara, 87 Mont. 24, 36, 285 P. 668; Smith v. McCormick, 52 Mont. 324, 157 P. 1010; Title Insurance & Trust Co. v. King Land & Imp. Co., 162 Cal. 44, 120 P. 1066; Commonwealth Trust Co. v. Lorain, 43 Idaho 784, 255 P. 909.

As before stated defendant's default for failure to appear was filed and duly entered by the clerk on July 16, 1942, on written praecipe by plaintiff. At the hearing of March 2, 1943, it was noted that the clerk had overlooked and omitted to sign the default so entered by him more than seven months previous. The minutes of the court covering the hearing of March 2, 1943, recite: Said matter came on regularly for hearing with plaintiff appearing in person and by his attorney, S. J. Rigney. There being no appearance on the part of the defendant, either in person or by counsel, and his default, duly entered herein, not being properly signed, and the Court being fully advised in the premises, it was ordered that defendant's default be entered forthwith for his failure to appear, or otherwise plead within the time allowed by law. Susie H. Galbreath, Galen G. Galbreath and J. J. Galbreath, were duly sworn and testified on behalf of the plaintiff. Whereupon, said matter was submitted, and by the Court taken under advisement." Then appears the following note: "Note: The praecipe for default was duly filed July 16, 1942, and the default was filed on the same date, July 16, but was not properly signed by the Clerk and the Court directed the Clerk to sign the same at this time, March 2, 1943."

Evidently the district court was of the opinion that the validity of the default "duly entered herein" on July 16, 1942 was affected by the absence therefrom of the signature of the Clerk which doubtless prompted the court on March 2, 1943, to order "that defendant's default be entered forthwith." Subdivision 2 of Section 9322, Revised Codes, provides that in the cases and under the conditions there enumerated "the clerk must enter the default of the defendant" but there is no requirement that the clerk sign such default. Nevertheless respondent contends that defendant's default was not entered in this cause until March 2, 1943,...

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