Green v. Kandle

• Decision Date: 20 September 1911
• Parties: HERBERT L. GREEN, Administrator, Respondent, v. JUSTIN O. KANDLE, Appellant
• Court: Idaho Supreme Court

118 P. 90

20 Idaho 190

HERBERT L. GREEN, Administrator, Respondent, v. JUSTIN O. KANDLE, Appellant

Supreme Court of Idaho

September 20, 1911

DEFAULT JUDGMENT-MOTION TO VACATE JUDGMENT-SHOWING-SURVIVAL OF ACTION.

(Syllabus by the court.)

1. Where a party defendant has been served with process and has appeared in the action and subsequently allowed his default to be entered for failure to file an answer, and thereafter moves to have the judgment set aside and the default opened, the action of the trial court in granting or refusing the motion will not be disturbed on appeal, unless it is made to appear by the record that the court has abused the legal discretion vested in it in such manner as to work a palpable injustice upon one of the parties to the action.

2. Where a judgment has been obtained by plaintiff in an action which does not survive, and the plaintiff thereafter dies before a motion for new trial is heard or before the case is heard upon appeal, a clear showing ought to be required from the moving party before the court should set aside or reverse the judgment.

APPEAL from the District Court of the Fourth Judicial District, in and for Elmore County. Hon. Edward A. Walters, Judge.

Action by plaintiff for damages. Judgment in favor of the plaintiff and defendant moved to vacate the judgment and appealed from the order denying his motion. Affirmed.

Judgment affirmed. Costs awarded in favor of the respondent.

Chas F. Koelsch, for Appellant.

"A statute providing for the opening or vacation of a judgment by default is remedial, and should be liberally construed by the courts, especially in those cases where such a construction is calculated to advance justice." (6 Ency. Pl. & Pr. 154; Meade Co. Bank v. Decker, 19 S.D 128, 102 N.W. 597; Walsh v. Boyle, 94 Minn. 437, 103 N.W. 506; Lemon v. Hubbard, 10 Cal.App. 471, 102 P 554; Fildew v. Milner (Or.), 109 P. 1092; Harr v. Kight, 18 Idaho 53, 108 P. 539.)

"The power of the court should be freely and liberally exercised under this and other sections of the act, to mold and direct its proceedings so as to dispose of cases upon their substantial merits." (Roland v. Kreyenhagen, 18 Cal. 455; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Harbaugh v. Honey L. & W. Co., 109 Cal. 70, 41 P. 792; Cutler v. Haycock, 32 Utah 354, 90 P. 897.)

While it is true that in such proceedings a great deal is conceded to the discretion of the trial judge, such discretion is within circumscribed legal limits. (Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Mitchell v. Cal. & O. C. S. S. Co., 156 Cal. 576, 105 P. 590.)

N. Eugene Brasie, for Respondent.

"An application to set aside and vacate a judgment is addressed to the sound, legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed on appeal." (Harr v. Kight, 18 Idaho 53, 108 P. 539; Culver v. Mountainhome Electric Co., 17 Idaho 669, 107 P. 65; Western Loan etc. Co. v. Smith, 12 Idaho 94, 85 P. 1084; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Baker v. Knott, 3 Idaho 700, 35 P. 172.)

"To entitle a party to relief from a judgment or order entered by default, it is necessary that such person make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect." (Harr v. Kight, supra.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from an order denying a motion and application to vacate a judgment and open a default. The original action was commenced by Ethan S. Green against the appellant for alienation of the affection of the plaintiff's wife. Subsequent to the entry of judgment and prior to the prosecution of this appeal, Green died and his administrator was substituted as the representative of the estate for the purposes of the appeal.

The action was commenced on August 19, 1908, and summons was served on August 28th. On the 3d of October following the defendant filed a demurrer. On the 17th day of May, 1909, the demurrer was withdrawn and by stipulation of the parties the defendant was given ten days in which to answer. Some time thereafter negotiations were opened between the attorneys representing the respective parties looking to a compromise of the case, and propositions and counter-propositions were submitted. On August 4th, plaintiff's counsel declined the proposition offered by defendant and submitted a counter-proposition. No further negotiations appear to have been made looking to a settlement or compromise, and no answer was filed. On October 5, 1909, the default of the defendant was entered for failure to answer, and proofs were thereafter made and judgment was entered for the amount of $ 10,000, the sum prayed for by the complaint. Thereafter and on about the 13th day of November, 1909, the defendant made and filed his motion supported by affidavits, praying the court to vacate and set aside the judgment and open up the default and allow him to answer. After a hearing upon the motion, the court denied the same, and this appeal was taken.

The only question to be determined is whether, upon the record as it is presented on this appeal, we can say that the trial court abused its discretion in denying the motion and application. This court has a number of times held in substance that, "Where a defendant moves to vacate a judgment and set aside a default entered against him on account of 'mistake and inadvertence,' he must set forth the...