J.B. Colt Co. v. District Court of Fifth Judicial Dist. in and for Millard County

• Decision Date: 12 July 1928
• Docket Number: 4720
• Court: Utah Supreme Court
• Parties: J. B. COLT CO. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MILLARD COUNTY et al

269 P. 1017

72 Utah 281

J. B. COLT CO. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MILLARD COUNTY et al

No. 4720

Supreme Court of Utah

July 12, 1928

Original certiorari proceeding by the J. B. Colt Company against the District Court of the Fifth Judicial District in and for Millard County, Utah, and another.

DECISION FOR PLAINTIFF in accordance with opinion.

J. C Halbersleben, of Provo, for plaintiff.

O. L Huntsman, of Fillmore, for defendants.

HANSEN, J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ., concur.

OPINION

HANSEN, J.

Upon a verified petition on behalf of the plaintiff, a writ of certiorari was issued out of this court, directed to the district court of the Fifth judicial district, in and for Millard county, Utah, commanding that all records and proceedings had in an action pending in that court wherein J. B. Colt Company, a corporation, is plaintiff, and J. H. Mountford is defendant, be certified to this court. The writ was served personally upon the defendant J. H. Mountford, O. L. Huntsman, his attorney, and the clerk of the district court of Millard county, Utah. The clerk of such court has made return, by certifying to this court the records and proceedings had in that case as directed by the writ. The record so certified discloses these facts:

On April 9, 1924, J. B. Colt Company, a corporation filed a complaint against J. H. Mountford in the district court of Millard county, Utah. Personal service of summons was had upon the defendant. On May 20, 1924, defendant's attorney served upon counsel for the plaintiff and filed with the clerk in the cause a notice that on September 23, 1924, defendant would move the court for an order requiring plaintiff to separately state each of several causes of action commingled in plaintiff's complaint. The record does not disclose whether or not any motion was made in pursuance of the notice or, if so, what ruling, if any, was made thereon.

On October 20, 1924, plaintiff, by leave of court, filed an amended complaint. On November 6, 1924, defendant's counsel served upon counsel for plaintiff and filed with the clerk notice that on December 1, 1924, the defendant would move for an order requiring plaintiff to separately state each of several causes of action commingled in plaintiff's amended complaint. The record is also silent as to whether or not any motion was made in pursuance of this notice, or, if so, what ruling, if any, was made thereon. On January 9, 1925, defendant's attorney served upon plaintiff's attorney and filed with the clerk a notice that on February 9, 1925, defendant would move to strike from plaintiff's amended complaint certain specified allegations therein. On May 16, 1925, defendant filed a general demurrer to plaintiff's amended complaint. On May 27, 1925, a written order was signed by the presiding judge and filed with the clerk, striking some of the allegations of the amended complaint. On September 23, 1925, a written stipulation was signed by counsel for the plaintiff and defendant, which reads as follows:

"The above-named defendant stipulates and agrees with the above-named plaintiff that said plaintiff may forthwith file its amended complaint herein, and said defendant hereby acknowledges receipt of a copy of said amended complaint and service thereof is hereby accepted."

On September 28, 1925, the written stipulation of counsel and a second amended complaint were filed with the clerk in the cause. On September 29, 1925, defendant served and filed with the clerk a general demurrer to plaintiff's second amended complaint. On October 26, 1925, defendant's demurrer to plaintiff's second amended complaint was over-ruled, and defendant was given 20 days in which to answer. On October 30, 1925, counsel for defendant was duly notified by mail of the order overruling defendant's demurrer to plaintiff's second amended complaint. On December 22, 1925, default of the defendant was entered. On January 7, 1926, a default money judgment was entered in favor of plaintiff and against defendant. On April 5, 1926, an answer, to the plaintiff's second amended complaint was filed with the clerk by the defendant. It does not appear that leave of court was obtained to file the answer, which, as will be observed, was filed about three months after judgment was rendered against the defendant. On December 11, 1927, defendant's counsel filed with the clerk a motion to set aside the judgment entered on January, 7, 1926. The grounds upon which defendant asked to have the judgment set aside as stated in the motion are these:

"First. That the plaintiff above named, being a foreign corporation and not having complied with the laws of the state of Utah for doing business within the said state, having carried on business within the state contrary to law, has no right nor power to invoke the jurisdiction of said court, and the court had no jurisdiction of plaintiff's claim against the defendant.

"Second. That defendant has a good defense to plaintiff's claim, having filed his answer to plaintiff's amended complaint.

"Third. That the ends of justice will best be served in this case if the defendant be now permitted to file his answer to plaintiff's complaint, and that the case be heard upon its merits.

"Fourth. And for other reasons and grounds stated in defendant's affidavit attached hereto."

The affidavit attached to the motion recites in substance that the answer to the second amended complaint was not filed within time after the overruling of the demurrer, because defendant was absent from Millard county in attendance upon his wife, who was suffering from the results of an operation for toxic goitre; that he was not given formal notice of the judgment entered against him until an execution was issued in the cause and his property levied upon; that he has a defense to plaintiff's alleged cause of action, in that the plaintiff is a foreign corporation, and at the time he entered into the contract sued upon the plaintiff was doing business in the state of Utah without having complied with the laws of this state relative to foreign corporations doing business within the state. Counsel for plaintiff filed with the clerk an affidavit wherein it is alleged that defendant was orally informed of the judgment entered against him soon after the judgment was so entered. A minute entry dated March 15, 1928, shows that the judgment entered in the cause was set aside--

"upon the grounds that it is a judgment in favor of J. B. Colt Company, a corporation of New Jersey, whereas, the complaint filed in this case alleges that the plaintiff is the J. B. Colt Company, a corporation of the state of California. The parties to the original complaint are apparently not the parties in the amended complaint, upon which the default judgment sought to be set aside was entered."

The original complaint and the first amended complaint allege that the plaintiff is, and at all times therein mentioned has been, a corporation organized and existing under and by virtue of the laws of the state of California. The second amended complaint alleges the plaintiff is a corporation of New Jersey. The plaintiff prosecutes this proceeding to review the order setting aside the judgment. No claim is made that this court may not properly review the order complained of in this proceeding.

The plaintiff contends that the learned judge of the district court acted in excess of his jurisdiction in vacating the judgment in question. Such contention is based upon the provisions of Comp. Laws Utah 1917, § 6619, which, so far as material here, provides:

"The court may * * * upon such terms as may be just, relieve a party or his legal representative from a judgment * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for * * * the relief sought during the term at which such judgment * * * complained of was taken, the court, or judge thereof in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term."

The defendant Mountford contends: First, that the writ issued out of this court should be quashed, because it was not served upon the judge of the district court of the Fifth district in...