Green v. Wiederhold

• Decision Date: 03 July 1919
• Docket Number: 4162.
• Citation: 181 P. 981,56 Mont. 237
• Parties: GREEN v. WIEDERHOLD.
• Court: Montana Supreme Court

181 P. 981

56 Mont. 237

GREEN v. WIEDERHOLD.

No. 4162.

Supreme Court of Montana

July 3, 1919

Appeal from District Court, Chouteau County; John W. Tattan, Judge.

Action by William H. Green against John A. Wiederhold. From an order setting aside a default judgment, plaintiff appeals. Order reversed.

C. A Spaulding, of Helena, for appellant.

COOPER J.

Appeal from an order setting aside a default judgment. On May 2 1916, comlaint was filed, summons issued, and an attachment levied upon property of the defendant in Chouteau county Mont. On July 14th of the same year alias summons was issued and published, and on August 7, 1916, said alias summons, together with a copy of the complaint, was delivered personally to the defendant in the county of Henry, state of Illinois, by a person named Lowry. On October 13, 1916, a default judgment was entered in favor of plaintiff and against defendant in the sum of $836.48, execution issued thereon, delivered to the sheriff, and the judgment fully satisfied out of the property attached. On April 27, 1917, Messrs. Stranahan & Stranahan, attorneys at law residing at Ft. Benton, presented to the court a motion to set aside the default, an answer on the merits, and an affidavit of defendant sworn to before a notary public of the state of Illinois in support of an application to have the case reopened. The material parts of the affidavit so filed are as follows: That defendant received a copy of the complaint and summons at the hands of one Lowry on or about August 7, 1916, and "immediately forwarded the same to the attorney" retained by the son of defendant "to represent and look after affiant's interest in said action"; that said attorney was by affiant admonished "to be diligent and active in affiant's behalf"; that affiant "at other times during said summer months wrote to said attorney and urged him to diligent and effective action in his behalf, and sent him facts and data with which to prepare" the defense, and "fully believed that every preparation for a vigorous and effective defense had been made, until later informed that judgment by default had been entered in said cause against him." Said affidavit also contains statements to the effect that the son of defendant, "Fred Wiederhold, about 23 years of age, wholly unacquainted with legal procedure and actions in court," attempted to look after the interests of affiant in said cause "and secure and retain a competent attorney at law at Ft. Benton, Mont., to defend said action in court, and, as affiant supposed and believed, and as his said son so informed affiant, he had secured and retained a competent attorney to perform all and every legal and necessary service by way of pleadings and answer to safeguard and defend affiant's interest in said action; that through some mistake, inadvertence, misunderstanding, or excusable neglect of his son or attorney, or both, wholly unknown to affiant," default was taken and judgment rendered and entered on or about October 13, 1916, in said cause. Defendant further states in his affidavit that "now, and for several years last past, [he] has been without the state of Montana, and has been during all of said time a resident of Henry county, state of Illinois; that during the entire year of 1916 he was a resident of said state of Illinois, and was without the confines of the state of Montana;" that during the year 1916 "his health was in a precarious condition"; and that he was forced to and did rely upon his son and said attorney to look after his interests in Montana. It also appears in the affidavit that immediately upon the delivery to him of the complaint and summons he "forwarded the same to the attorney whom his said son informed affiant had been...