Harr v. Kight

• Decision Date: 11 April 1910
• Parties: JACKSON HARR, Respondent, v. JAMES KIGHT, HENRY KIGHT and BERT KIGHT, Appellants
• Court: Idaho Supreme Court

108 P. 539

18 Idaho 53

JACKSON HARR, Respondent, v. JAMES KIGHT, HENRY KIGHT and BERT KIGHT, Appellants

Supreme Court of Idaho

April 11, 1910

DEFAULT-SETTING ASIDE.

(Syllabus by the court.)

1. An application to open and set aside a default 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 on appeal.

2. To entitle a party to relief from a judgment or order entered by default, it is necessary that such person make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect, and in addition thereto that such person has a meritorious defense to such action.

3. Showing in this case examined, and held that the trial court did not abuse its discretion in refusing to open and set aside a default.

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

An application to open and set aside a default. Application denied. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

I. N Smith, and Clay McNamee, for Appellants.

The default is filed April 6, 1909, but it is conceded that there was no entry of this default in the clerk's record at the time the demurrer was filed on April 15, 1909. Anyway, the misdirection of the letter containing the money sent by client to attorney was the cause of any further affirmative action not being taken for client, except the filing of the demurrer.

The Smith family is so numerous, their initials so varied and intermingled, that courts should take judicial knowledge thereof, and should also hold that errors in initials of any man by the name of "Smith" are sufficient to excuse an ordinary man for any default arising therefrom. (Wheeler v. Castor, 11 N.D. 347, 92 N.W. 381, 61 L R. A. 746.)

The attorney for appellants relied upon the record of the clerk as not showing any default at the time the demurrer was filed, and thereafter repeatedly requested from the clerk the information shown by the affidavit at folio 144, also 155 156. (Not denied.) He had the right to rely upon this information. (Melde v. Reynolds, 129 Cal. 308, 61 P. 932; Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. 472, 34 P. 909.)

S. O. Tannahill, and Geo. W. Tannahill, for Respondent.

"An application to vacate a default judgment is addressed to the discretion of the trial court, and such discretion will not be reviewed unless abused." (Baker v. Knott, 3 Idaho 700, 35 P. 172; Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Sandstrom v. Smith, 11 Idaho 779, 84 P. 1060.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

An action was commenced by the respondent against the appellants in the district court of Nez Perce county to obtain a perpetual injunction restraining the appellants from interfering with a certain water right claimed by respondent and certain water-pipes and reservoir, and for damages. The complaint was filed with the clerk on February 15, 1909. Summons was issued and served personally upon the defendants in Nez Perce county on February 16, 1909. Upon April 6, 1909, the default of the defendants for want of an answer was entered by the clerk. On April 15, 1909, a general demurrer was filed to the complaint signed by I. N. Smith, attorney for defendants. On May 12, 1909, the judge of the district court filed his findings of fact, conclusions of law and a decree which, among other things, recited: "This cause came on to be heard on the 26th day of April, A. D. 1909, before the court without a jury, the plaintiff appearing in person and with his attorneys, S. O. Tannahill and Geo. W. Tannahill, Esqs., the defendant having been duly and regularly served with summons as by law required, and having failed to appear and answer or demur, their default for not answering having been duly entered, as required by law, the court having heard the evidence on the part of the plaintiff, and duly considered the same, and having heretofore made its findings of fact and conclusions of law." Then follow the findings and the decree in favor of the plaintiff, quieting the plaintiff's title to certain water rights, right of way and water flowing through a certain pipe and reservoir, and for a perpetual injunction. On June 12, 1909, a motion to set aside the default was made, supported by the affidavits of James Kight and I. N. Smith, and accompanied with an answer to the complaint. In the affidavit of Kight it is stated that he had stated the facts of his case to I. N. Smith, his counsel, and was advised by him that he had a good and sufficient defense and referred to his answer, and as an excuse for his failing to appear and suffering default to be entered against him and the other defendants, he stated that the defendants had employed the firm of Johnson & Stookey as their counsel, and that because of some misunderstanding, the affiant received no notice of the setting of the case for trial, nor did he have an opportunity to appear at the trial for that reason; that he was anxious to appear and would have appeared had he received notice, and that it was never his intention to concede the rights claimed by plaintiff nor to admit that the plaintiff was entitled to the waters in controversy; that he was delayed further from the fact that he engaged I. N. Smith to represent his interest, and agreed to send him a certain sum of money, and that he sent the money on April 21st, by postoffice order, but because of miscarriage the same was not received by his attorney.

In the affidavit of I. N. Smith, he swears that he is attorney for the defendants and was first consulted by the defendants on April 14, 1909, and partially engaged as attorney, but before he would take any step other than to file a demurrer, he should be paid the sum of twenty-five dollars, and on April 15th he filed a general demurrer; that at that time the register of actions did not show any entry of default; that after that he waited to hear from his client with remittance and did not receive any letter until about June 5, 1909; that as a matter of fact his client on April 21, 1909, purchased a postoffice order at Lenore, Idaho, in favor of said Smith, and wrote a letter on that day and placed the letter and postoffice order in an envelope and erroneously addressed the letter to N. P. Smith at Lewiston, Idaho; that such letter was advertised, and on May 17, 1909, was sent to the dead letter office, and was remailed to the sender on June 4th. In the meantime Kight had informed his attorney that he had sent the money and asked for an investigation, and upon receiving assurances that the money had been sent, said Smith as attorney served the answer and the affidavit of Kight to set aside the default; that in his opinion there was a complete and perfect defense to the cause of action set forth in the complaint, and that Kight had always expressed his desire to contest said action and protect his interests and did not concede the rights of the plaintiff. On April 28th he wrote his client informing him of the condition of the case, but because of his poverty he was unable to come to Lewiston and look after the case, but did come in about a week prior to May 28th, and tried to get his counsel to go ahead with the case, but counsel insisted on the payment of the twenty-five dollars.

Counsel further states in his affidavit that he was informed by his client that his client's former attorneys, Johnson & Stookey, had attempted to settle the cause without appearance by answer or otherwise in court, and sent to their client a certain stipulation which he refused to sign; that he depended upon his counsel to see that no default was taken against him, and that he did not know that default had been taken until he was informed by affiant; that affiant was not employed in the said case until after the default was entered.

In opposition to the motion to set aside the default, affidavits were made by Jackson Harr and S. O. Tannahill, one of his counsel. Mr. Harr...