Hamilton v. Hamilton

• Decision Date: 23 April 1912
• Parties: NETTIE F. HAMILTON, Respondent, v. W. S. HAMILTON, Appellant
• Court: Idaho Supreme Court

123 P. 630

21 Idaho 672

NETTIE F. HAMILTON, Respondent, v. W. S. HAMILTON, Appellant

Supreme Court of Idaho

April 23, 1912

DEFAULT-POWER OF COURT IN RULING ON SAME-EVIDENCE.

(Syllabus by the court.)

1. An application to open a default is addressed to the sound legal discretion of the court, and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion, and in determining the question of discretion the power of the court should be freely and liberally exercised under the statute to control and direct its proceedings so as to dispose of cases upon their substantial merits.

2. The discretionary power of the trial judge upon an application to open a default means a sound and impartial discretion and should be resolved, in case of doubt, in favor of the application.

3. Affidavits filed on motion to open default in this case examined, and held that the trial judge did not err in refusing to open a default judgment upon the showing made in said affidavits.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

An action to open a default and set aside a judgment. Motion overruled. Affirmed.

Order affirmed. Costs awarded to the respondent.

W. H Casady, and E. M. Griffith, for Appellant.

The discretion spoken of in the statute is a legal discretion and not a mere arbitrary one. (Bailey v. Taaffe, 29 Cal 426.)

Defaults are looked upon with disfavor by the courts, and if there is a reasonable doubt as to the sufficiency of the showing of a defendant on motion to open a default, that doubt should be resolved in favor of the application. (Lybecker v Murray, 58 Cal. 189; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497.)

Where the circumstances lead the court to hesitate as to the merits of the application, an order denying such a motion will be reversed on appeal. (Vermont Marble Co. v. Black (Cal.), 38 P. 512; Pearson v. Drobaz Fishing Co., 99 Cal. 425, 34 P. 76; Utah Com. Sav. Bank v Trumbo, 17 Utah 198, 53 P. 1033-1036; Watson v. S. F. & H. B. R. Co., 41 Cal. 17.)

The same rule applies to divorce cases as to other cases for opening defaults, and the fact that the plaintiff has remarried immediately after the judgment is no ground for refusing to set it aside. (Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. 641, 36 P. 759; Medina v. Medina, 22 Colo. 146, 43 P. 1001.)

Where there was an agreement between the parties that the case should be continued . . . . or a promise of plaintiff that she would not press the case to judgment, in violation of which plaintiff, without notice to defendant, enters a default, or secures a judgment against the latter in his absence, it is good grounds to vacate the judgment. (23 Cyc. 920, and authorities cited.)

Neglect occasioned by a reliance of defendant upon assurance given him by the plaintiff, or those upon whom he had a right to depend, that it would not be necessary for him to take an active part in the case, or that the suit would not be prosecuted, is sufficient to warrant the court in setting aside the default and judgment. (23 Cyc. 935; Craig v. San Bernardino Inv. Co., 101 Cal. 122, 35 P. 558; City Block Co. v. App, 4 Colo. App. 350, 35 P. 985; Cadwallader v. McClay, 37 Neb. 359, 40 Am. St. 496, 55 N.W. 1054; Henderson v. Lang, 71 Minn. 468, 74 N.W. 173; Thompson v. Connell, 31 Ore. 231, 65 Am. St. 818, 48 P. 467.)

W. N. Scales, for Respondent.

The application to vacate and set aside the default entered by the clerk and also the judgment entered thereafter was within the sound legal discretion of the trial court, and unless it is shown that there has been an unwarranted exercise of that discretion, this court will not disturb the order and judgment. (Baker v. Knott, 3 Idaho 700, 702, 703, 35 P. 176; Western Loan & Trust Co. v. Smith, 12 Idaho 94, 85 P. 1084; Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65.)

STEWART, C. J. Sullivan, J., concurs. Ailshie, J., sat at the hearing but took no part in the consideration of the case.

OPINION

STEWART, C. J.

The respondent commenced an action in the district court of Idaho county against the appellant for a divorce and also to have certain real property assigned and adjudged to her as her sole and separate property and also certain personal property, all of which was alleged to be property accumulated during the marriage relation, and for the custody of her three children, the issue of such marriage, aged respectively, sixteen, nine and three years--two sons and one daughter. The ground alleged was adultery with one May Ann Dyer.

The complaint was filed on January 6, 1911. Summons issued upon that day and return made showing that service of the summons and complaint was made on the defendant in Nez Perce county on the 13th day of April, 1911. On May 25, 1911, the default of the defendant was entered and the cause was tried to the court upon the evidence of the plaintiff, Nettie F. Hamilton, and May M. Dyer. The court found that the defendant was duly served with summons and failed to appear, and a decree of divorce was granted and the property described in the complaint was awarded to the plaintiff as her sole and separate property and also the custody of the three children.

On September 3, 1911, the defendant caused to be served upon the plaintiff a notice that on the 9th day of September, 1911, the defendant would move the court to vacate and set aside the decree of divorce and open the default; and that leave be given the defendant to file his answer to the complaint upon the grounds that such judgment and decree were rendered by reason of his mistake, inadvertence, surprise and excusable neglect, and that said motion would be made upon the records and files in said cause and upon the affidavit of William S. Hamilton.

In opposition to the granting of said application, the plaintiff appeared and filed two counter-affidavits, one made by the plaintiff and the other by Edgar Snowman, to whom the plaintiff had been married subsequent to the granting of said divorce. The defendant also filed affidavits by Clay McNamee and L. W. Clark, and at the hearing presented his answer and cross-complaint and asked leave to file the same.

On September 20th the motion to open the default was presented and by stipulation ten days were given to file affidavits in reply to the affidavits of Clark and McNamee, and on October 10, 1911, the court made an order denying said motion. From this order this appeal was taken.

The only question presented on appeal is, Did the trial court err in denying the motion to set aside the default? It appears from an examination of the answer tendered that such answer is sufficient as an affidavit of merits and shows a defense to the plaintiff's cause of action, and the cross-complaint states facts which show a sufficient cause of action for divorce by the defendant against the plaintiff.

The appellant in his affidavit, among other things, alleges that May M. Dyer, a sister of the plaintiff, came to the home of affiant about four years prior to the making of the affidavit, and has ever since resided in that neighborhood part of the time at the home of affiant and part of the time at the home of another sister, the wife of one J. W. Parker; that in the year 1910 the said May M. Dyer became pregnant; that at said time she was at the home of said J. W. Parker; that one Edgar Snowman, a widower, lived on an adjoining ranch to that of affiant, whose home was about one-half mile distant from affiant; that Snowman for several years, and especially the year 1910, was a frequent visitor at the home of affiant, and, as affiant believes, was unduly intimate and free with affiant's wife; that a stranger came to affiant at night and after dark and stated that he came to warn affiant to get out of the country at once, as said stranger had heard that Parker and another neighbor threatened that they were going to get up a vigilance committee to deal with affiant for the rape of, or adultery with, May M. Dyer, and for slander, if the affiant did not get out of that country; that affiant told the plaintiff, and then she told affiant she knew of such threats, and that Parker accused affiant of being the father of said child and the cause of her sister's trouble, and that Parker threatened to have affiant arrested and prosecuted criminally for adultery or rape, and that Parker was threatening to bring suit against affiant for a large sum of money for libel and slander, and that plaintiff began immediately to urge affiant to turn over to her all his property to save the same from being squandered and wasted in litigation, and begged affiant to turn over his property and go away to some other state until said troubles were settled, and that this coaxing and pleading were kept up until about the 21st or 22d of December, when affiant left his home and went to Dayton, Washington, returning on or about the 29th day of December, and found his wife away from home at the home of a neighbor, and she refused to return home with affiant; that he was harassed and annoyed and worried and almost driven to insanity and attempted to commit suicide; that afterward plaintiff returned to her home and immediately renewed her pleadings and coaxing and crying, and then told affiant that Parker insisted that she bring suit for divorce against affiant or that said Parker would prosecute said suits both civil and criminal; and that she had been and consulted counsel while affiant was away, and that her attorney had advised her that she could bring suit for...