J.I. Case Threshing Machine Co. v. Simpson

• Decision Date: 04 January 1918
• Docket Number: 3844.
• Citation: 170 P. 12,54 Mont. 316
• Parties: J. I. CASE THRESHING MACHINE CO. v. SIMPSON.
• Court: Montana Supreme Court

170 P. 12

54 Mont. 316

J. I. CASE THRESHING MACHINE CO. v. SIMPSON.

No. 3844.

Supreme Court of Montana

January 4, 1918

Appeal from District Court, Valley County; F. N. Utter, Judge.

Action by the J. I. Case Threshing Machine Company, a corporation against John H. Simpson. From a default judgment for plaintiff, and an order treated as one denying his motion to vacate the same, defendant appeals. Reversed and remanded.

Nolan & Donovan, of Butte, and Thomas Dignan, of Glasgow, for appellant.

John Hurly and Clement A. Parker, both of Glasgow, and Norris & Hurd, of Great Falls, for respondent.

HOLLOWAY J.

In January, 1915, the J. I. Case Threshing Machine Company, a corporation, commenced this action to enforce payment of three promissory notes. The defendant first interposed a general demurrer, which was overruled, and then answered. At the time the cause was set for trial, defendant and his counsel failed to appear, and judgment was rendered in favor of plaintiff for the full amount claimed. On the day following, counsel for defendant made formal application to have the judgment set aside and the cause tried on its merits. The grounds of the motion were excusable neglect in failing to appear at the trial, and insufficiency of the complaint to state a cause of action. In disposing of the motion the court made the following order:

"The court ordered that the judgment in the case be set aside and opened on the condition that the defendant within 20 days after this date pay the clerk of the court for the plaintiff the taxable costs of the plaintiff, and further that the defendant file his written consent that the case be tried on the issues as joined when the case was set for trial on January 26, 1916, and, further, that defendant file his written consent within 20 days that the case be tried at the next ensuing term of court."

Defendant treated the order as one denying his motion, and appealed from the judgment and from so much of the order as required him to consent to try the cause upon the issues already framed, and to agree that the cause should be tried at the next term of court.

The order indicates that the trial court considered defendant's showing sufficient, and no complaint is made that the court imposed costs. There was not before the court any application for a continuance or for leave to file an amended answer, and the imposition of terms affecting those subjects was clearly not authorized or justified. For this reason, defendant was at liberty to treat the order as, in effect, denying his motion.

The motion should have been granted, for the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff. The complaint alleges that on January 12, 1911, the defendant made, executed, and delivered his three promissory notes, a copy of each of which is set forth at length. It alleges that certain payments were made, and that the sum of $2,108.80 and interest "still remains due, owing, and payable upon said promissory notes, no part of which has been paid." Each of the notes is payable to "J. I....