Hall v. Whittier

• Decision Date: 28 June 1911
• Parties: J. BENJAMIN HALL, Appellant, v. F. W. WHITTIER et al., Respondents
• Court: Idaho Supreme Court

116 P. 1031

20 Idaho 120

J. BENJAMIN HALL, Appellant, v. F. W. WHITTIER et al., Respondents

Supreme Court of Idaho

June 28, 1911

APPEARANCE IN ACTION-DEFAULT OF JUDGMENT-DEFAULT JUDGMENT-VACATING DEFAULT JUDGMENT-SHOWING FOR OPENING DEFAULT-MISTAKE AND INADVERTENCE.

(Syllabus by the court.)

1. Where a defendant against whom a default judgment has been entered serves and files notice of motion to vacate and set aside the judgment and open the default, and thereafter a hearing is had on the same and the judgment is vacated and the default is set aside, and an appeal is taken from such order and the record on appeal is silent on the question as to whether a formal motion was made, the appellate court will presume that a motion was made on the grounds designated in the notice, and that the court granted a motion that had been made by the moving party. In other words, the granting of a motion implies the making of a motion.

2. Where a defendant has been served by process, and within the time allowed for answer files a demurrer and thereafter withdraws the demurrer and is given five days in which to further plead, and fails to make any further appearance within the time granted, he is thereafter in default, the same as he would have been had he not appeared within the time originally allowed under the statute after the service of summons, and the clerk or court may properly enter his default, and he is not entitled to any notice of application or motion for default.

3. 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 facts which he claims constitute the mistake or inadvertence and submit the same to the court, who must finally determine whether or not such facts constitute a mistake or an inadvertence within the purview of the statute sufficient to justify the granting of the relief sought.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.

From an order vacating and setting aside a default judgment and opening a default and allowing the defendant to answer plaintiff appealed. Reversed.

Order reversed and vacated, and cause remanded, with direction. Costs awarded in favor of appellant.

H. C Mills, for Appellant.

On appeal the court will not presume from the giving of a notice of motion that such motion was actually made. This fact must appear from the record. (Heerlich v. McDonald, 80 Cal. 472, 22 P. 299; Lewis v. Fireman's Ins Co., 67 Ill.App. 195; People v. Ah Sam, 41 Cal 645; Thomas v. Superior Court, 6 Cal.App. 629, 92 P. 739; Spencer v. Branham, 109 Cal. 336, 41 P. 1095.)

"The attention of the court must be called to the relief prayed for, and the court moved to grant it." (14 Ency. Pl. & Pr. 74.)

When an application is made for an order, the grounds of the motion should be stated specifically, and the grounds not so stated cannot be considered by the courts. (Thompson v. Los Angeles, 125 Cal. 270, 57 P. 1015; Robson v. Colson, 9 Idaho 215, 72 P. 951; Idaho Mer. Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Givens v. Keeney, 7 Idaho 335, 63 P. 110; Miller v. Luco, 80 Cal. 257, 22 P. 195; Loring v. Stewart, 79 Cal. 200, 21 P. 651; Shain v. Forbes, 82 Cal. 577, 23 P. 198.)

The record in the case at bar contains no motion whatever. Further, there is nothing in the record whereby this court can infer that such a motion was ever made.

Correct practice and the rule in this state to be followed is that, in addition to the showing of one of the grounds mentioned in sec. 4229, Rev. Codes, the defendant in his affidavit of merits must set forth the substance of his defense, so that the court may judge for itself whether the alleged defense is frivolous or meritorious. (Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 389; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan & Savings Co. v. Smith, 12 Idaho 94, 85 P. 1084; Beck v. Lavin, 15 Idaho 363, 97 P. 1028; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Harr v. Kight, 18 Idaho 53, 108 P. 539; Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89.) The California courts have held to this rule: "In order to justify the vacating of a judgement and the setting aside of a default, the party claiming to be thus aggrieved must show excusable neglect or present a reasonable excuse for his default." (Shearman v. Jorgensen, 106 Cal. 483, 39 P. 863; Edwards v. Hellings, 103 Cal. 204, 37 P. 218; Heine v. Treadwell, 72 Cal. 217, 13 P. 503.) Also the Washington court, under a similar statute. (Minneapolis Steel & Mach. Co. v. Aetna etc. Co., 56 Wash. 699, 106 P. 160.) And the Colorado court. (Thompson v. Crescent Mill & Elev. Co., 47 Colo. 4, 105 P. 880.) Also Montana. (Thomas v. Chambers, 14 Mont. 423, 36 P. 814; City of Helena v. Brule, 15 Mont. 429, 39 P. 456, 852; Morse v. Callantine, 19 Mont. 87, 47 P. 635; Jones v. Jones, 37 Mont. 155, 94 P. 1056; Brown v. Weinstein, 40 Mont. 202, 105 P. 730, and other cases.)

Longley & Hazel, for Respondents.

There is no showing in the record of objection to the sufficiency of respondents's affidavit, nor any showing of objection as to the motion or want of a motion to vacate and set aside the default judgment herein taken against respondents. The presumption, therefore, is that even if insufficient, the appellant waived his objections, if any he had, and cannot now for the first time raise objections thereto.

"The 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 upon appeal." (Culver v. Mountain Home Elec. Co., 17 Idaho 669, 107 P. 65.)

The trial court should always exercise its discretion in favor of setting aside a default when the application is made in good faith and any reasonable showing is made. (Dougherty v. Nevada Bank, 68 Cal. 276, 9 P. 112, 5 Am. & Eng. Ency. of Law, 496; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. 472, 39 P. 909; Webster v. Somer (Cal.), 114 P. 575.)

"There is a plain difference in meaning between 'default' and 'absence'; 'default' signifying that there has not been an appearance at any stage of the action by the party in default, while 'absence' means that the party was not present at a particular time." (Covart v. Haskins, 39 Kan. 571, 18 P. 522.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

This is an appeal from an order of the district court setting aside and vacating a judgment and opening a default. Plaintiff, who is appellant here, commenced an action against the defendants and respondents to recover judgment in the sum of $ 500 for services rendered by the plaintiff to the defendants. The defendants demurred to the complaint and thereafter and on the 13th day of February, 1911, the defendants appeared in open court by counsel and asked and were granted leave to withdraw their demurrer and take five days in which to answer the complaint. The court granted them a period of five days in which to file an answer. The matter ran along until the 28th of February without any further appearance, on which latter date the plaintiff applied to the court for a default against the defendants, which was accordingly granted, and they thereupon took judgment for the sum demanded. Thereafter and on March 2d the defendants, through their attorney, served and filed a notice that they would move the court to vacate the judgment and open up the default on two grounds: First, on the ground that the plaintiff had not given the defendants notice of his application for default and judgment, and that no notice whatever of such proceedings was ever served on the defendants or their attorneys; and, second, upon the ground that the default had been taken against the defendants through inadvertence and mistake, and that they had a good defense to the action on its merits. This notice was accompanied by the affidavit of one of the attorneys for the defendants, setting up the facts hereinbefore enumerated, the filing of demurrer and the withdrawal of the same and the giving of time in which to answer, and the subsequent entry of judgment without notice to the attorneys for the defendants. This affidavit closes with the following paragraph:

"That the said defendants and each of them have a good defense to the complaint of the plaintiff herein; that they have fully and fairly stated the facts to their said attorneys of record and have been advised that they have a good and substantial defense on the merits of said action, and that your affiant verily believes the same to be true."

During the course of the argument, it was insisted by counsel for the plaintiff that no affidavit of merits had been filed and that no answer had been filed, whereupon the court allowed the defendants to file an answer, which denied the material allegations of the complaint. The original judgment was ordered by Hon. C. O. Stockslager, a judge of the fourth district, and the order vacating the judgment and setting aside the default was made by Hon. Edward A. Walters, who is also a judge of the fourth district.

The only question presented here is that of the sufficiency of the showing made by the defendants to justify the court in vacating the judgment and setting aside the default. The application was heard on affidavits and files in the case and we have all the showing before this court that was before the trial judge who granted the motion, and we are therefore in as favorable a position for considering the matter as was the trial judge. (Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Van Camp v. Emery, 13 Idaho 202, 89 P. 752.)

The...