Hanson v. Rogers

Decision Date23 April 1934
Docket Number6066
PartiesWALTER H. HANSON, Administrator of the Estate of C. A. STILLINGER, Deceased, and KATE I. BAKER, Executrix of the Estate of LILLIE STILLINGER, Deceased, Appellants, v. J. P. ROGERS, and SOPHIA M. ROGERS, Executrix of the Estate of J. P. ROGERS, Deceased; JOHN COONY, THE MERCED MINING AND MILLING COMPANY, a Corporation, H. C. WILLIS, W. A. CONNERS, ANDREW PARKENSON, A. L. DOBLE, and N. J. WYCKOFF, Trustees or Directors of Said MERCED MINING AND MILLING COMPANY, and NIAGARA PLACER MINING COMPANY, a Corporation, Respondents
CourtIdaho Supreme Court

JUDGMENT-DEFAULT-MOTION TO VACATE AND SET ASIDE-STIPULATIONS-SUBSTITUTION OF PARTIES.

1. Motion to open default and vacate decree for mistake inadvertence, surprise, or excusable neglect held too late where made more than six months after adjournment of term during which default was entered (I. C. A., sec. 5-905).

2. Under statute providing for vacating default for mistake inadvertence, surprise, or excusable neglect, default for which relief is provided must be that of litigant and not of stranger to proceeding (I. C. A., sec. 5-905).

3. Where invalidity of void judgment appears on face of judgment-roll, court, on own motion or motion of party, can vacate judgment at any time (I. C. A., sec. 5-905).

4. Where invalidity of void judgment does not appear on face of judgment-roll, motion to vacate must be made within reasonable time (I. C. A., sec. 5-905).

5. "Reasonable time" within which motion may be made to vacate judgment which is not shown to be void on face of judgment-roll is six months after adjournment of term at which judgment was rendered (I. C. A., sec. 5-905).

6. Error or inadvertence on part of attorney in signing stipulation as attorney for plaintiff instead of as attorney for himself as administrator of the estate of one original plaintiff and as attorney for administratrix of estate of another original plaintiff held too trifling to render stipulation invalid.

7. Construction placed on statute by supreme court of state from which statute is adopted, while not conclusive, is highly persuasive in construing statute.

8. Where attorney for administrator and administratrix of original plaintiffs and attorney representing executrix of deceased defendant stipulated for substitution of personal representatives for deceased litigants, and trial court recognized representatives as substituted parties, failure to make formal motion and order of substitution held not fatal to trial court's jurisdiction (I. C. A., sec. 5-319).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Appeal from an order setting aside and vacating default and decree. Reversed.

Costs to appellants.

Walter H. Hanson and F. C. Keane, for Appellants.

Application for relief from a default taken against a party through mistake, inadvertence, surprise, or excusable neglect, must be made within a reasonable time and not exceeding six months after the adjournment of the term at which such judgment was procured. (Sec. 5-905, I. C. A.; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635; Connolly v. Probate Court, 25 Idaho 35, 136 P. 205; Vane v. Jones, 13 Idaho 21, 88 P. 1058; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 51 P. 767.)

Chas E. Horning and James A. Wayne, for Respondents.

Section 5-905, I. C. A., has no application to void judgments. Courts have inherent power to vacate and set aside void judgments upon a motion made within a reasonable time after the entry thereof. (Miller v. Prout, 33 Idaho 709, 197 P. 1023; Armitage v. Horseshoe Bend Co., 35 Idaho 179, 204 P. 1073; McAllister v. Erickson, 45 Idaho 211, 261 P. 242; Baldwin v. Anderson, 51 Idaho 614, 8 P.2d 461; 52 Idaho 234, 13 P.2d 650, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A. L. R. 298.)

WERNETTE, J. Budge, C. J., and Givens and Morgan, JJ., concur. Holden, J., dissents.

OPINION

WERNETTE, J.

January 27, 1922, C. A. Stillinger and Lillie Stillinger, his wife, filed suit in the district court for Shoshone county against J. P. Rogers and others to quiet title to the following placer mining claims located in Shoshone county, Idaho, to wit: The Maryland No. 5, the Maryland and the Snowshoe. It was alleged in the complaint that the defendants claimed to be the owners of the following placer mining claims also located in Shoshone county, to wit: The June Bug, the Mayflower, the Bluebird, the Lilly, the Susan and the St. John. February 16, 1922, defendant, J. P. Rogers, filed a general demurrer to the complaint, which demurrer was overruled February 28, 1922. Rogers filed an answer and affirmative defense April 3, 1922. The plaintiffs filed a general demurrer to the answer, April 7, 1922, which demurrer was not set down for hearing until May 23, 1923. On the date so set the attorney for defendant, J. P. Rogers, appeared but counsel for plaintiffs did not appear. The court gave plaintiffs five days within which to serve and file a brief in support of their demurrer. On July 12, 1923, the court overruled the demurrer and gave plaintiffs twenty days to answer, but on July 27, 1923, the court, "on the informal application of the plaintiffs," made an order vacating the former order overruling plaintiffs' demurrer.

No action whatever was taken in the suit from July 27, 1923, to March 26, 1925. In the meantime, in July, 1924, plaintiff C. A. Stillinger, died. March 26, 1925, defendant, J. P. Rogers, through his attorney, filed a motion for change of venue. Some time after this J. P. Rogers died and his widow, Sophia M. Rogers, became executrix of his estate, and as such on December 3, 1929, sold and conveyed the property in litigation to others, the deed therefor being recorded February 12, 1930.

From March 26, 1925, to January, 1931, a period of more than five years, no steps were taken to dispose of the motion for a change of venue or plaintiffs' demurrer to the answer. But on December 13, 1930, a written stipulation was signed by respective counsel for the litigants, which was later and on January 16, 1931, filed. It was stipulated that Walter H. Hanson, administrator of the estate of C. A. Stillinger, deceased, might be substituted as a party plaintiff in lieu of the said C. A. Stillinger; that Kate I. Baker, as administratrix of the estate of Lillie Stillinger, deceased, might be substituted as a party plaintiff in lieu of the said Lillie Stillinger, and that Sophia M. Rogers, as executrix of the estate of J. P. Rogers, deceased, might be substituted as party defendant in lieu of the said J. P. Rogers, but no formal motion for an order of substitution was made.

January 9, 1931, an order of the court was made setting plaintiffs' demurrer to the answer and the motion for change of venue for hearing on January 14, 1931. On that date an order was made sustaining the demurrer and giving defendants ten days within which to amend, "with the proviso that if their amended answer be not served at that time, that their default be entered." At the same time, January 14, 1931, an order was entered denying the motion of defendant, J. P. Rogers, for a change of venue. The defendants having failed to file an amended answer default was entered by the clerk of the court February 6, 1931, and on April 25, 1931, findings of fact, conclusions of law and decree were rendered and filed quieting title to the said placer mining claims, to wit: The Maryland No. 5, the Maryland and the Snowshoe.

April 4, 1932, respondent, Niagara Placer Mining Company, filed a motion to vacate and set aside the said default of J. P. Rogers and Sophia M. Rogers, as executrix of the estate of J. P. Rogers, deceased, entered February 6, 1931, as well as the findings of fact, conclusions of law and decree, and also to substitute respondent as a defendant in place of J. P. Rogers and Sophia M. Rogers, as executrix of the estate of J. P. Rogers, deceased, or in lieu of said substitution that respondent be permitted to intervene as a party defendant, and as a party whose interests were adverse to plaintiffs. The motion was supported by the affidavit of the president of the respondent company, and opposed by the affidavits of appellant, Walter H. Hanson. May 2, 1933, an order was made setting aside the default of J. P. Rogers and Sophia M. Rogers, as executrix as aforesaid, and by such order the findings of fact, conclusions of law and decree were also vacated and set aside, and respondent substituted as the defendant in place of J. P. Rogers and the executrix, Sophia M. Rogers. The appeal is from that order.

The default in this case was entered on February 6, 1931, and the decree of the court was rendered and filed April 25, 1931. The motion to vacate and set aside the default and the decree of the court was not filed until April 4, 1932, over eleven months after the decree had been rendered and filed and more than a year after the default had been entered. The basis of the motion to vacate and set aside the default, as well as the decree, was that the default was entered and the decree rendered by reason of the mistake, inadvertence, surprise or excusable neglect of the Niagara Placer Mining Company, its officers and agents and the unit-holders who had an interest in such corporation. There was also an intimation that the entering of the default and the procuring of the decree were fraudulently obtained, but the showing in support of the motion does not state sufficient facts to show that fraud was actually perpetrated.

Assuming for this decision, but not deciding, that the Niagara Placer Mining Company had the right to have itself substituted as a party defendant in this action over a year after default was entered and eleven months after the decree of the...

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