Greene v. Montana Brewing Co.

• Decision Date: 23 February 1905
• Citation: 79 P. 693,32 Mont. 102
• Parties: GREENE v. MONTANA BREWING CO.
• Court: Montana Supreme Court

79 P. 693

32 Mont. 102

GREENE v. MONTANA BREWING CO.

Supreme Court of Montana

February 23, 1905

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by Howard S. Greene, as trustee in bankruptcy, against the Montana Brewing Company. From an order denying defendant's motion to set aside a default and permit defendant to answer, it appeals. Reversed.

Downing & Stephenson and Jesse B. Roote, for appellant.

Geo. H Stanton and J. A. McDonough, for respondent.

HOLLOWAY J.

On January 23, 1900, an action was commenced in the district court of Cascade county by Howard S. Greene, a trustee in bankruptcy, against the Montana Brewing Company, to recover the sum of $534.25. Complaint, answer, and reply were filed the cause tried, and a judgment in favor of the plaintiff rendered, from which an appeal was taken to this court, where it was held that the complaint did not state a cause of action, and the judgment was reversed. Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751. On August 19 1903, the remittitur from this court was filed in the office of the clerk of the district court, and on the same day the plaintiff filed his amended complaint, and made service thereof in the manner hereinafter indicated. On September 9th the default of the defendant was entered for its failure to answer or demur to the amended complaint, and a judgment rendered in favor of the plaintiff for the amount claimed. On or about September 30th an execution was issued, and placed in the hands of the sheriff, who demanded from the defendant the satisfaction of the judgment, and this was the first intimation that the defendant or its attorneys had that an amended complaint had been filed, its default entered, or a judgment rendered. On the same day the defendant applied to the court for, and obtained, a stay of the execution, and on October 1st presented to the court a motion to vacate the judgment, to set aside the default, and permit the defendant to file an answer to the amended complaint. In support of this motion the defendant filed certain affidavits and tendered an answer. Counter affidavits were filed, and upon the hearing of the motion certain oral testimony was taken. On November 5th the court overruled the motion, and the defendant appealed from the judgment, and from the order refusing to vacate the judgment and set aside the default.

It is only necessary for us to consider one ground of the motion. Section 774 of the Code of Civil Procedure provides, among other things: "The court may likewise, in its discretion, after notice, *** 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," etc. No question of mistake or surprise is involved here. The only inquiry for our determination is, do the facts set forth in the affidavits accompanying the motion disclose such inadvertence or neglect as ought to excuse the defendant and entitle it to have the default set aside? From the affidavits filed it appears that Laura A. Lake had been employed as a stenographer in the office of Downing & Stephenson, the attorneys for the defendant, from about April 15, 1903; that on the 19th day of August Mr. Stephenson was absent from the city of Great Falls; that Mr. Downing was in his office until about 2 o'clock of that day, when he left for Ft. Benton where he was detained on professional business for several days; that, about 4 o'clock on August 19th, George H Stanton, attorney for the plaintiff, appeared at the office of Downing & Stephenson, and asked the stenographer if she ever admitted service of papers for the firm of Downing & Stephenson; she replied that she had never done so, but at Mr. Stanton's suggestion she signed the acceptance of service of the amended complaint with the name "Downing & Stephenson"; that a copy of the complaint was evidently left with Miss Lake, but by her mislaid, and never thereafter seen by her or by either member of the firm of Downing & Stephenson; that she received the impression, whether well founded or not, that Mr. Stanton would speak to Downing or Stephenson about the matter of the service of this paper; that she, in fact, had no knowledge of the character of the paper itself, and gave the matter no further thought; that she never called the attention of either Downing or Stephenson to the fact of the service of the paper, and neither of them, nor any officer of the defendant company, had any knowledge of such fact until the execution was issued. It further appears that Mr. Downing had requested the clerk of the district court to inform him whenever the remittitur from the Supreme Court should be filed in the district court, but that the clerk had never done so; that, although Downing met Stanton almost every day after his return from Ft. Benton, Stanton had never, either directly or indirectly, referred to the matter at all; and, notwithstanding diligent search was made through the office of Downing & Stephenson, the copy of the amended complaint was never found. The answer tendered with the motion puts in issue all the material allegations of the amended complaint, and must be deemed sufficient for the purpose of the motion. Furthermore, it is made to appear from the record that the utmost diligence was practiced by the defendant on the discovery of its default. Inadvertence is defined as (1) the quality of being inadvertent; lack of heedfulness or attentiveness; inattention; negligence; (2) an effect of inattention; a result of carelessness; an oversight, mistake, or fault from negligence. Webster's International Dictionary. Negligence or inadvertence directly traceable to a party litigant or his attorney, no less excusable than that disclosed by this...