Green v. Craney

• Decision Date: 07 July 1919
• Parties: R. S. GREEN and WILLIAM LAW, Copartners Doing Business Under the Firm Name and Style of GREEN & LAW, Appellants, v. C. W. CRANEY, Respondent
• Court: Idaho Supreme Court

182 P. 852

32 Idaho 338

R. S. GREEN and WILLIAM LAW, Copartners Doing Business Under the Firm Name and Style of GREEN & LAW, Appellants, v. C. W. CRANEY, Respondent

Supreme Court of Idaho

July 7, 1919

APPEAL AND ERROR-PLEADING AND PRACTICE-JUDGMENT ON PLEADINGS-ORDER VACATING JUDGMENT.

1. On appeal from an order vacating a judgment for plaintiff, on the pleadings, the sufficiency of the facts stated in the answer to constitute a defense cannot be urged, for the first time, in the supreme court.

2. An affidavit, filed after judgment for plaintiff on the pleadings to the effect that defendant and his attorney believed the allegations of the answer sufficient to constitute a defense, does not show mistake, inadvertence surprise or excusable neglect as meant by C. L., sec. 4229 and will not support an order vacating the judgment.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. R. N. Dunn, Judge.

Appeal from an order vacating a judgment for plaintiff. Reversed.

Order reversed. Costs awarded to appellants.

Elder &amp Elder, for Appellants.

The respondent sought to have the judgment which was entered in this case set aside and annulled under the provisions of sec 4229, Rev. Codes. However, this court has repeatedly held that a showing made under this section, in order to entitle the court to grant relief from the judgment, must establish facts which show excusable neglect, inadvertence and surprise, and must also show that the party seeking relief has a meritorious defense. He claims relief from the judgment on the ground that his attorney failed to set forth the necessary facts. The failure of an attorney to properly attend to his client's case will not bring the party within the provisions of this statute. (Domer v. Stone, 27 Idaho 279, 149 P. 505; Kynaston v. Thorpe, 29 Idaho 302, 158 P. 790; Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7.)

Ezra R. Whitla and E. N. La Veine, for Respondent.

A judgment on the pleadings should not be granted where a reply was filed, but was insufficient. Uncertainty in a pleading is never grounds for a judgment on the pleading. (Harris v. Harris, 9 Colo. App. 211, 47 P. 841; 31 Cyc. 607; Rice v. Bush, 16 Colo. 484, 27 P. 720; Davis v. Ford, 15 Wash. 107, 45 P. 739, 46 P. 393; Walling v. Bown, 9 Idaho 184, 72 P. 960; Mills Novelty Co. v. Dunbar, 11 Idaho 671, 83 P. 932; Davenport v. Burke, 27 Idaho 464, 149 P. 511.)

MORGAN, C. J. Rice and Budge, JJ., concur.

OPINION

MORGAN, C. J.

This action was commenced by appellants to recover on a judgment made and entered against respondent in Cherokee county, Kansas. An answer was filed, and, on motion of appellants, the court granted judgment in their favor on the pleadings. Respondent moved that the judgment be set aside and for permission to file and serve an amended answer, on the following grounds:

"1st. That said judgment was rendered against this defendant by his excusable mistake, inadvertence and surprise.

"2d. That at the time said judgment was rendered an order had been made in the above-entitled court sustaining the demurrer to the answer and under the rules of the court, particularly rule six thereof, the defendant was entitled to five days after the service of the order sustaining said demurrer, or notice thereof, in which to file and serve an amended answer herein, and that said judgment was rendered during said time upon the pleadings when defendant was entitled to file and serve an amended answer in this action.

"3d. That defendant has a good and meritorious defense to said action as will appear by the verified amended answer, a copy of which is submitted herewith and served herewith, and the entry of said judgment against defendant was caused by his excusable neglect, surprise and mistake, and said defendant intended at all times and stages to appear and defend said action and to present his defense herein, and that in justice he should be entitled and allowed to file and serve said amended answer and have said cause determined upon the merits."

The motion was granted and this appeal is from that order.

The order does not designate the ground on which it was granted, but it is apparent it was not based on the second specification in the motion, i. e., that the judgment was rendered during a period of time provided by the rules of the district court within which respondent might file and serve an amended answer.

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