Kelley v. Eidam

• Citation: 231 P. 678,32 Wyo. 271
• Decision Date: 30 December 1924
• Docket Number: 1160
• Parties: ALBERT D. KELLEY, doing business as A. D. Kelley Realty Co. v. CHARLES EIDAM [*]
• Court: United States State Supreme Court of Wyoming

231 P. 678

32 Wyo. 271

ALBERT D. KELLEY, doing business as A. D. Kelley Realty Co. v. CHARLES EIDAM ^[*]

No. 1160

Supreme Court of Wyoming

December 30, 1924

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by A. D. Kelley doing business as The A. D. Kelley Realty Co. against Charles Eidam. From judgment refusing to set aside default judgment, defendant appeals.

Affirmed.

W. L Walls, for appellant.

There were two separate and distinct plaintiffs, one commencing the action and the other taking the judgment; the name of plaintiff was changed by amendment without notice; 5704 C S.; I Suth. C. P. P. 474; Moorman v. Schmidt, 6 O S. 328; Billings v. Palmer 2 (Calif.) 432, 83 P. 1077. Amendments are governed by statutes, 5704-5709 C. S.; A. D. Kelley Realty Co. is without capacity to sue, 14 Cyc. 438; Mexican Mill Co. v. Co., 4th (Nev.) 40; action brought without authority cannot be amended, 31 Cyc. 475, nor where the party sought to be substituted was the real party in interest at commencement of the action, Hallett v. Larcom, 51 P. 108; the judgment is void.

Marion A. Kline for respondent.

The notice of appeal was too late, Culbertson v. Ainsworth, 26 Wyo. 214; the assignments of error are not discussed in the briefs and under the rule are waived. Phillips v. Brill, 15 Wyo. 525; Bosler v. Bliler, 9 Wyo. 277, 62 P. 277; R. R. Co. v. Lampman, 18 Wyo. 106; a motion to vacate a judgment is addressed to the sound discretion of the Court, I Black (2nd Ed.) 553; Barton's Appeal, 7 A. 168. There was lack of diligence on the part of counsel, Milwaukee Co. v. Jagodzinski, 84 Wis. 35; Union Co. v. Bd., 47 Wis. 245. The maker of a note cannot deny the existence of the payee; Grover v. Muralt, 137 N.W. 830. Plaintiff amended before answer under 5704 C. S. to amend by substitution of a different party is allowable; Pittsburg Co. v. Martin, 82 Ind. 476; Harper v. Hendricks, 31 P. 734. Defendant's motion to vacate was not supported by proper showing; Bradley v. Slater (Nebr.) 78 N.W. 1069.

BROWN, District Judge. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BROWN, District Judge.

For convenience in this opinion the plaintiff below will be called plaintiff, and the defendant below, defendant.

This is an action on a promissory note given by the defendant Charles Eidam to the plaintiff, under the name of A. D. Kelley Realty Company. The plaintiff filed his petition in the District Court of Laramie County, Wyoming, in the name of A. D. Kelley Realty Company, plaintiff. The petition was the usual petition on a promissory note. It contained no allegations as to the legal capacity of the plaintiff. The defendant filed a motion in the cause before answer day, in which he moved that the court require the plaintiff to make his petition more definite and certain in this, to-wit: "That plaintiff state whether A. D. Kelley Realty Company is an individual, partnership or a corporation. If an individual, who it is," etc. Confessing and complying with the motion, before answer day, under Section 5704, Compiled Statutes 1920, plaintiff filed an amended petition, a copy of which was delivered to the attorney for the defendant. The original contains this acknowledgment: "Service of a copy of the amended petition in the above entitled matter hereby acknowledged this 27th day of October, 1922, (Signed) H. S. Ridgely, attorney for defendant."

This amended petition is entitled, Albert D. Kelley, doing business as A. D. Kelley Realty Company, plaintiff, vs. Charles Eidam, defendant. It contains the following allegations: "That plaintiff is engaged in the real estate business in the city of Cheyenne, Wyoming, and carries on such business under the name and style of A. D. Kelley Realty Company."

Thereafter on the 21st day of December, 1922, the plaintiff through his attorney filed a motion for judgment on default. On December 26th following, the defendant through his attorney, H. S. Ridgely, filed a motion to require the plaintiff to make his petition more definite and certain by requiring him to set forth when he became the owner and holder of the alleged promissory note for the payment of the sum due thereon this action is predicated.

January 9th, thereafter, plaintiff appearing by Marion A. Kline, his attorney, and the defendant appearing by W. L. Walls, his attorney, the court struck from the files the motion to make more definite and certain, filed by the defendant on December 26th, for the reason that such motion was filed too late, and sustained the motion of the plaintiff, filed December 23rd, asking that defendant be adjudged to be in default for failure to answer, and gave the plaintiff judgment for the amount prayed for in his petition.

On February 8th following, the defendant through his attorney, W. L. Walls, filed a motion to vacate and set aside the judgment theretofore rendered, and asking leave to file an answer within five days from the date of such order. This motion was supported by the affidavit of the attorney, W. L. Walls, and the affidavit of the defendant Charles Eidam, and set up the following reasons for having the judgment vacated.

First: That originally the defendant had employed H. S. Ridgely to represent him in this case, and that Ridgely had represented him for a time, but it became necessary for the said Ridgely to absent himself from the State of Wyoming, and before leaving he turned over this matter to affiant (Walls) for attention.

The affidavit of the attorney recites: "That the rule in the District Courts of this state in which this affiant has heretofore practiced, requires the litigants to whose pleading a motion or demurrer has been filed, to procure a ruling on such pleading, and if the same is confessed or sustained, upon such pleading being amended to meet the objection, he, who tenders the amended pleading is required to obtain a rule upon his adversary to answer or otherwise plead within a time certain."

Second: That no notice was ever given the defendant or his attorneys of the filing of the amended petition.

Third: By the affidavit of the defendant, that he had purchased from one Goldstein, through the Kelley Realty Company, certain real property in the city of Cheyenne, making an initial payment of $ 750.00, the note in suit being given for a part of this payment. That the written agreement between the defendant and Goldstein was placed in the First National Bank of Cheyenne, in escrow. That under said agreement the defendant was to make monthly payments on said property. That defendant, because of unforeseen circumstances, was unable to meet the first monthly payment, and that thereupon he went to the Kelley Realty Company and informed said company of his inability to make the payments as provided by the contract. That he was informed by the company that if he couldn't make the necessary payment to prevent losing all he had put in the property, if he would sign his name on the back of the contract for the purchase and sale of said property, and the escrow receipt, and send them to the Realty Company, that said company would sell the property and return to him his note. That he acted on said proposal, but that said Realty Company had failed to do as it promised and failed to return to him the note.

The plaintiff opposed the motion to set aside and vacate said judgment and in support of said opposition filed an affidavit of the plaintiff, Albert D. Kelley, Marion A. Kline, his attorney, and J. H. Wenandy. Among other things set forth in these affidavits, the plaintiff claims that while he had the conversation with the defendant referred to in his affidavit, he had agreed only to endeavor to sell said real estate in order to prevent the defendant from losing the money he had put into it. That defendant delayed so long in signing and delivering the papers to the said Realty Company, that the company was unable to make the sale. That in the meantime Goldstein had demanded the papers from the bank and they had been delivered to him. That the attorney appearing for defendant was present in the court room when defendant's motion to require the plaintiff to make his petition more definite and certain was stricken, and took an exception thereto, and then left the court room.

The issue on the motion to set aside and vacate said judgment was submitted to the court on the 19th day of February, and the order thereon recites that after considering the motion and the resistance to said motion filed by plaintiff and said affidavits filed supporting said motion and the affidavits supporting said resistance, and having heard arguments of counsel and being fully advised in the matter, the court overruled the motion and refused to vacate and set aside the judgment.

The appellant urges two grounds in his specifications of error for the reversal of the action of the lower court. First, that the court erred in rendering judgment in favor of the plaintiff, and second, that the court erred in denying defendant's motion to vacate and set aside the judgment.

Two propositions are presented in appellant's brief:

First: That in the original petition filed in this action, the plaintiff named was not a real or artificial person and therefore could not maintain this action, and, being a fictitious name, the petition could not be amended by the substitution of another plaintiff, and therefore the judgment rendered on said amended petition was void.

Second: That no notice of the filing of the amended petition was served upon defendant.

The defendant bases his first contention upon the rule that an action must be brought in a name which under the lex fori is a legal entity, or it is a nullity, and should be dismissed. 30 Cyc. 21; The Pembinaw v. Wilson, 11 Iowa 479; Detroit...