Holzman v. Henneberry

Decision Date20 November 1905
Citation11 Idaho 428,83 P. 497
PartiesHOLZEMAN v. HENNEBERRY
CourtIdaho Supreme Court

AFFIDAVIT TO SET ASIDE DEFAULT JUDGMENT-SHOWING OF MERITS-MISTAKE INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT-DISCRETION OF COURT.

1. Affidavits on motion to set aside a default judgment, under the provisions of section 4229 of the Revised Statutes, must show that the default occurred through mistake, inadvertence surprise or excusable neglect, and that the defendant has a meritorious defense to the action.

2. An application to set aside and vacate a default judgment is addressed to the sound legal discretion of the court to which the application is made, and unless it appears that such discretion has been abused, the order will not be disturbed on appeal.

3. This discretion must be directed and exercised within the well-established rules of law, and when the essential elements necessary to set it in action are wanting, its improper exercise will be corrected on appeal.

4. Showing made in this case reviewed and held insufficient to authorize the setting aside a default judgment.

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

Defendant moved on affidavits for an order vacating and setting aside a default judgment. Motion was granted and plaintiffs appealed. Reversed.

Reversed and remanded. Costs awarded to appellant.

Charles L. Heitman, for Appellant.

In order to set aside a judgment rendered on default, it must be shown that the default occurred through mistake inadvertence, surprise or excusable neglect, and that the defendant has a meritorious defense. (Bailey v. Taaffe, 29 Cal. 423; Parrott v. Den, 34 Cal. 79; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398.)

Stewart S. Denning, for Respondent, cites no authorities on the point decided.

AILSHIE J. Stockslager, C. J., Sullivan, J., concurring.

OPINION

AILSHIE, J.

This is an appeal from an order vacating and setting aside a default judgment. Plaintiffs filed their complaint on the twentieth day of January, 1904. On the same date summons and writ of attachment duly issued. The summons was served on the defendant in Kootenai county on the twenty-second day of January, and on the same day the writ of attachment was levied on certain personal property and also on one hundred and sixty acres of land belonging to the defendant. Thereafter, and within the ten days allowed for answering Edwin McBee, Esq., served upon counsel for plaintiffs a demurrer to the complaint, but this demurrer does not seem to have ever been filed. On February 1st the defendant executed what seems to be a bill of sale or trust deed to one William Rhinehart, conveying to Rhinehart certain personal property belonging to the defendant, and described in the bill of sale, and directing and authorizing Rhinehart, as trustee, to sell and dispose of all the property therein described and apply the proceeds toward the payment of certain of his creditors whose names and the amounts due each were set out in the bill of sale or trust deed. Among the claims enumerated in the bill of sale to Rhinehart was the claim of the plaintiffs in this action. The defendant authorized the trustee to pay the claim of the plaintiffs in this action and also their costs and an attorney fee. On February 18, 1904, it appears that the attorneys for the respective parties in open court agreed to the entry of judgment as prayed for in the complaint, and thereupon judgment was duly and regularly entered against the defendant. The order made at that time by the district judge directing the entry of judgment is as follows: "At this time, by agreement of counsel for plaintiffs and defendant, it was ordered by the court that judgment for the plaintiffs be entered herein in accordance with the prayer to plaintiffs' complaint." It also appears that about the time the bill of sale was executed in favor of Rhinehart as trustee, plaintiffs' attorney stipulated with Mr. McBee, as attorney for defendant, that the personal property under attachment might be released from the operation of the attachment, that property being included in the bill of sale. On May 5th a writ of execution issued directed to the sheriff of the county for the collection of the judgment, and the writ was thereafter returned as having been executed by selling one hundred and sixty acres of real estate belonging to the defendant which had previously been attached. Thereafter, and on August 20th, the defendant, through his counsel, served notice upon plaintiffs, that he would make a motion to vacate and set aside the judgment, and thereafter the motion was made, supported by numerous affidavits, upon the ground that the judgment had been taken against defendant through his "inadvertence, surprise and excusable neglect." The affidavits are numerous and lengthy in support of and in opposition to this motion, but the substance of defendant's showing is, that while he admits the indebtedness, he claims that it was his understanding when he executed the bill of sale to Rhinehart, as trustee, that the plaintiffs would take no further steps in their suit against him, but would look to Rhinehart, as trustee, to make the amount of plaintiffs' claim out of the trust property. He also denies that Mr. McBee was ever his attorney or authorized to appear for him in this action. He also charges that the trustee has been reckless and extravagant in the management and disposition of the trust property, and that he has made excessive charges for his services and expenses in connection therewith. He alleges that he allowed the case to pass without further consideration or attention on his part under the understanding and belief that no further action would be taken against him, and that had he understood that the plaintiffs intended to further proceed to judgment and execution, he would...

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