Holland Bank v. Lieuallen

• Decision Date: 24 May 1898
• Parties: HOLLAND BANK v. LIEUALLEN
• Court: Idaho Supreme Court

53 P. 398

6 Idaho 127

HOLLAND BANK v. LIEUALLEN

Supreme Court of Idaho

May 24, 1898

SETTING ASIDE DEFAULT-WHAT MUST BE SHOWN-DISCRETION OF TRIAL COURT.-The discretion of the trial court in refusing to set aside a default judgment will not be disturbed unless it is shown that such discretion has been abused. An application by the defendant to set aside a default judgment after the term at which such judgment was rendered must be supported by evidence showing mistake, inadvertence, surprise or excusable neglect on his part, and accompanied by an affidavit of merits showing facts which constitute a defense to the plaintiff's action.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Order and judgment appealed affirmed. Costs of appeal awarded to respondent.

George W. Goode, for Appellant.

The best rule seems to be that 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, 58 et seq.; Buell v. Emerich, 35 Cal. 116; Anaconda Min. Co v. Saile, 16 Mont. 8, 50 Am. St. Rep. 472, 39 P. 909.) It is true that the matter rests within the sound discretion of the trial court, but this is not an arbitrary or biased discretion, and in case the trial court abuses this discretion its decision will be reviewed by the appellate courts. (5 Am. & Eng. Ency. of Law, par. 62, note 6; Watson v. San Francisco etc. R. R. Co., 41 Cal. 20; Vermont Marble Co. v. Black (Cal.), 38 P. 512; Broadbent v. Brumback, 2 Idaho 366, 16 P. 555.)

Forney Smith & Moore, for Respondent.

The allowance of $ 250 as attorney's fees is stipulated in the contract and is secured by the terms of the mortgage, the same as any other part of the indebtedness. At the hearing of this cause evidence was introduced on the part of the plaintiff and upon this evidence judgment was rendered. The presumption is that courts do their duty; that they follow the law; that their decisions are correct. Error must affirmatively appear. (Hastings v. Cunningham, 35 Cal. 550; Hayne on New Trial and Appeal, sec. 285, cases.) It will be observed that while appellants relied upon "excusable neglect" as ground for setting aside the judgment, there was no showing of his defense. He simply says he has talked with an attorney, and had "fully and fairly stated all the facts of the case, etc." But the better rule is that he shall show his defense. (Bailey v. Taffe, 29 Cal. 423 (426); 6 Ency. of Pl. & Pr., 183, 184; 5 Ency. of Pl. & Pr., 1024, note and citation 3, extending to bottom of p. 1025; Schofield v. Horse Spring Cattle Co., 65 F. 433; Goodhue v. Churchman, 1 Barb. Ch. (N. Y.) 596.) The record in this case, we submit, shows no case of excusable neglect; neither does it show any abuse of discretion on the part of the lower court in refusing to set aside the default. But, as we stated before, error must affirmatively appear. On the point of setting aside a judgment after sale of the lands, see Foster v. Hauswirth, 5 Mont. 566, 6 P. 19. On discretionary power in refusing the relief sought herein, see Robert E. Lee S. M. Co. v. Englebach, 18 Colo. 106, 31 P. 771; Lovejoy v. Willamette Transp. etc. Co., 24 Or. 569, 34 P. 660; Livesley v. O'Brien, 6 Wash. 553, 34 P. 134.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

Plaintiff brought its suit to foreclose a mortgage. Summons was duly issued and served. After the time for answering had expired the default of the defendants was entered, and judgment of foreclosure entered in conformity to the prayer of the complaint. After the expiration of the term of court at which the judgment was rendered, the defendants applied to the court for an order setting aside the default and judgment. In support of the application, the affidavit of the defendant, A. A. Lieuallen was filed to the effect that, after the service of summons, he saw one of the attorneys for the plaintiff, and requested that the cause be not placed upon the calendar at the succeeding term of court, commencing May 17, 1897, and that the cause be continued until the fall term of court, without defendants waiving any of their rights; that to said request he was told by said attorney to see Mr. Reed, the agent for the plaintiff; that said Reed suggested that things stand awhile, and he would communicate with the office at Spokane, and would let the defendant know if he would agree to a continuance; that after this affiant called at the office of said Reed several times, but failed to see said Reed; that affiant neglected to file answer for himself and wife within the time required by the summons, while waiting to hear from said Reed, who failed to inform affiant; that by examination at...