James v. Lederer-Strauss & Co.

• Decision Date: 14 February 1925
• Docket Number: 1137
• Parties: JAMES ET AL v. LEDERER-STRAUSS & CO. [*]
• Court: Wyoming Supreme Court

233 P. 137

32 Wyo. 377

JAMES ET AL v. LEDERER-STRAUSS & CO. ^[*]

No. 1137

Supreme Court of Wyoming

February 14, 1925

ERROR to District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Anna James and another against Lederer-Strauss & Co. There was a judgment for defendant, and plaintiffs bring error.

Affirmed.

Ray E Lee for plaintiffs in error.

The record shows that no service was made; the clerk was without authority to render a default judgment; the action was upon open account; an open account is some term of a contract arising from a commercial transaction undetermined by the parties; Loventhal v. Morris, (Ala.) 15 S. 672; Purvis v. Kromer, (Ore.) 23 P. 260; McCamant v Batsell, 59 Tex. 363; Wroten Co. v. Mfg. Co., 95 S.W. 744. If the accounts were open, evidence would be required to establish them, by judicial determination a power not vested in clerks of Court; Bertagnolli v Bertagnolli, 23 Wyo. 228; a default judgment should contain proper facts, 23 Cyc. 767. The accounts purport to have been assigned, but no authority is shown for such assignment; proof was necessary; Patrick v. Ridgaway, (Md.) 4 Harr N. J. 312; the causes of action are incomplete and there is no adoption of allegations by reference from one to another; a judgment based on a petition containing several accounts cannot stand, if one account be bad; Baker v. Pyeatte, 108 Ind. 61, 9 N.E. 112; Gage v. Allen, 54 N.W. 627; the cause of action assigned to plaintiff merely for the purpose of a suit is insufficient to support a judgment; Brown v. Given, 66 O. S. 316; plaintiff is not the real party in interest, 5580 C. S. The showing below was sufficient to vacate a judgment; Ritchey v. Seeley, 102 N.W. 257; Sauer v. City, 69 Mo. 46; Oliver & Baum v. Pray, 4 Ohio 175; Stout v. Slocum, 52 N. J. Eq. 88; Brown v. Byam, 59 Ia. 52; Cripping v. Co., 76 P. 794; Darst v. Phillips, 41 O. S. 514; a showing of meritorious defense was sufficient. There is in reality no judgment.

Walter Q. Phelan for defendant in error.

This action was brought under 5923 C. S. To vacate a judgment; the evidence shows that the original judgment was regularly entered. The proceedings should have been by motion, 5926 C. S. Bertagnolli v. Bertagnolli, 23 Wyo. 228; the proceedings were barred by limitation; 5927-5932 C. S. the only exceptions made by the statute being for infancy and mental disability, 15 R. C. L. 694, 23 Cyc. 907; Giltman v. Donovan, 53 Ia. 362; Moore v. Court, (Cal.) 25 P. 22; Greshan v. Ellis, 22 S.W. 1; People v. Doge, 38 P. 203; Mallern v. Sage, 3 N.Y.S. 120; Temple v. Irvin, 34 Ind. 412; Witney v. Karner, 44 Wis. 363; before opening a judgment the Court must first adjudge that a valid defense exists, Kilpatrick v. Horton, 15 Wyo. 501; the burden is on the parties seeking relief; Phillip v. Samuel, 76 Mo. 657; Advocate v. Dell Ara, 84 S.W. 443; Tompkins v. Lang, 54 Ill.App. 500; Equitable relief will not be granted on showing that debtor owes the amount; Burg v. Bank, 8 Ill.App. 614. If application is made on ground that judgment is based on false testimony there must be corroboration; Ames v. Snider, 55 Ill. 498; Ableman v. Roth, 12 Wis. 81; Daly v. Milan, (Mont.) 35 P. 227; the statute gives the clerk authority to enter default judgment; the return of Summons showed service; no proof of the value of the goods was necessary; Dallas v. Fernean, 25 O. S. 635; the clerk acted ministerially, 15 R. C. L. 582, 23 Cyc. 758; Utah Assn. v. Bowman, (Utah) 113 P. 63; Reinhart v. Lugo, 24 P. 1089; Hersey v. Walsh, 38 Minn. 52; the petition shows claim for goods, wares and merchandise sold on an unpaid account, 1 R. C. L. 206, 1 C. J. 601; all allegations of the petition are taken as true after default, 2 R. C. L. 69; Collins v. Stanley, 15 Wyo. 282; Davidson v. Morrission, 5 S.W. 871; if any of the counts are sufficient the judgment must stand, 2 R. C. L. 87; 3 Anna. Cases 546; Iron Un. Co. v. Co., 166 F. 45, 20 L. R. A. N. S. 315; it was not shown that a new trial would result in a different judgment. This Court will not consider objections not made below.

BROWN, District Judge. KIMBALL, J., and TIDBALL, District Judge, concur.

OPINION

BROWN, District Judge.

Plaintiffs in error were plaintiffs below, and defendant in error was defendant below, and will be termed plaintiffs and defendant respectively.

Sometime prior to September 1st, 1915, plaintiffs Anna James and Martha James Arnold, were engaged in the millinery business in the city of Cheyenne. They had become heavily indebted to various wholesale houses. On September 1st, 1915, they executed a chattel mortgage, covering their stock of millinery goods, and furniture and fixtures used in connection with the business. This mortgage was made to Marion A. Kline, Trustee. Sometime prior to the 23rd day of May, A. D. 1919, the defendant in this action commenced an action against the plaintiffs on an account for goods furnished them by defendant, and on two assigned accounts from other wholesale houses, praying for judgment in the sum of $ 1625.81. There was no appearance in this action by the defendants, plaintiffs in this action, and on that date the clerk of the District Court of the First Judicial District, Wyoming, entered judgment under section 5726, Wyo. Comp. Stat. 1920, relating to default judgments.

October 18th, 1921, the plaintiffs brought this action against the defendant, in which they seek to have the former judgment set aside, alleging that it was obtained irregularly, by fraud of the defendant and its attorney, by the clerk of the court being deceived and imposed upon, and by and upon false testimony introduced by the defendant. The prayer asks that the court find that there was and is a valid defense to said action; that the judgment be vacated, set aside, canceled and adjudged to be null and void, that said case entitled Lederer-Strauss & Company, a corporation, plaintiff, vs. Anna James and Martha James Arnold, be re-opened and reinstated on the docket, and that these plaintiffs be permitted to appear and file their answer and defend said suit, and a temporary restraining order is also asked to hold the matter in statu quo until it is finally determined.

Issue was joined on the petition. Hearing was had thereon, and the court found generally in favor of the defendant. He also found that there had been no fraud practiced by the defendant or its attorney, and that the plaintiffs had failed to establish by evidence that they had a meritorious defense in the case of Lederer-Strauss & Company, a corporation, vs. Anna James and Martha James Arnold, defendants. Judgment was rendered in favor of defendant. From this judgment, the plaintiffs come into this court on error.

Plaintiff contends in his brief that this is an action in equity to enjoin the collection of a judgment and the sale thereunder of property. The defendant contends that it is an action under the statute to open and vacate a judgment after term, and that the statute of limitations has run against the action. We deem it unnecessary to determine either of these questions, since the matter can be determined on its merits. We are doubtful from an examination of the record whether the statute of limitations was relied upon as a defense in the lower court.

The grounds for reversal urged in the brief of plaintiffs are:

1. The clerk could not enter judgment after the term in which the default occurred.

2. The action was on an open account, and the clerk under the statute had no authority to enter judgment on such account, since he would act judicially in determining the amount due.

3. The judgment was void as to the second and third causes of action, since in neither of these causes of action did the petition allege the corporate capacity of the plaintiff, and that defendant was a partnership.

4. The judgment as to the second and third causes of action was void, since these causes of action were assigned to plaintiff in the former action for the purposes of suit and said plaintiff was not the real party in interest.

5. The defense to the action in which default judgment was rendered need only show a meritorious defense, and the court should not determine it to be a valid defense, or one that must succeed if the case is opened.

(1.) Plaintiff contends that section 5726, --which is, "In an action upon an account, or written instrument or other contract, express or implied, for the payment of money only or in foreclosure, judgment may be entered at any time during the term, after the defendant is in default for an answer, but the court may, for good cause shown, give further time for answer. After the expiration of such time for answer and the defendant's default, as herein specified, the clerk of the court shall, upon application of the plaintiff, or his attorney, in writing or orally enter judgment for the amount with interest endorsed on the writ, and specified in plaintiff's verified petition, together with the costs of the action, and no other or further proof of plaintiff's claim shall be required in such case," -- authorizes the clerk to enter judgment after the default of the defendant during the term at which default occurred, and not thereafter, and since the judgment in this case was entered at a subsequent term by the clerk, it is void. An examination of the history of this section shows the fallacy of the argument. This section was enacted by the legislature in 1886, and first appears in Session Laws, 1886, Chapter 60, section 184, as follows: "In an action upon an account, or written instrument for the payment of money only, or in foreclosure, judgment may be entered at any time during the term, after the defendant is in default for an answer, but the court may for good cause shown, give further time for answer." ...