Kerney v. Hatfield

• Decision Date: 27 January 1917
• Parties: WILLIAM H. KERNEY and CLARA KERNEY, His Wife, Respondents, v. EDITH S. HATFIELD, Administratrix of the Estate of WILLIAM J. HATFIELD, Deceased, Appellant
• Court: Idaho Supreme Court

162 P. 1077

30 Idaho 90

WILLIAM H. KERNEY and CLARA KERNEY, His Wife, Respondents, v. EDITH S. HATFIELD, Administratrix of the Estate of WILLIAM J. HATFIELD, Deceased, Appellant

Supreme Court of Idaho

January 27, 1917

PLEADING AND PRACTICE-DEFAULT-POSTPONEMENT-TERMS.

1. When a defendant has a pleading on file which tenders an issue of law or fact, although filed out of time, but before motion for default, and when he is in court and ready for trial, it is error to enter a default against him and to order that it become absolute unless he pay to plaintiff a sum of money by way of terms.

[As to right to enter default after pleading is filed out of time see note in Ann.Cas. 1915C, 738]

APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. Wm. A. Babcock, Judge.

Order overruling a motion to vacate a default and set aside a judgment. Reversed.

Reversed and remanded, with direction. Costs awarded to appellant.

Hyatt &amp Redford, E. R. Dampier, S. H. Hays and P. B. Carter, for Appellants.

"There can be no judgment by default where there is on file an answer or other pleading of the defendant raising an issue of law or fact." (Crossan v. Cooper, 41 Okla 281, 137 P. 354; Freeborn v. Chewelah Copper King Min. Co., 89 Wash. 519, 154 P. 1095.)

A default for failure to plead cannot be entered where the pleading, though out of time, is on file at the time the default is sought to be entered. (Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148 P. 374; Reher v. Reed, 166 Cal. 525, Ann. Cas. 1915C, 737, 137 P. 263; Tregambo v. Comanche Mill. & Min. Co., 57 Cal. 501; Lunnun v. Morris, 7 Cal.App. 710, 95 P. 907; Pett v. Clark, 5 Wis. 198; 6 Ency. Pl. & Pr. 82, 85; 31 Cyc. 134; 23 Cyc. 750; Eklund v. B. R. Lewis Lumber Co., 13 Idaho 581, 92 P. 532.)

"In determining the question of discretion, the power of the court should be freely and liberally exercised under the statute to mold and direct its proceedings so as to dispose of cases upon their substantial merits." (Pittock's Estate, In re, 15 Idaho 47 (52), 96 P. 212; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630.)

Longley & Walters, Taylor Cummins and H. C. Mills, for Respondents.

Sec. 4220, Rev. Codes, provides: "All pleadings subsequent to the complaint must be filed with the Clerk and copies thereof served upon the adverse party or his attorney."

Sec. 465, California Code of Civil Procedure, is identical with the Idaho statute, and the California court, in construing this statute in the case of Fletcher v. Maginnis, 136 Cal. 362, 68 P. 1015, says: "This statute is mandatory, by its terms, and a pleading prepared for the purpose of filing is not a pleading in fact until it is in fact filed and made a part of the record of the case as provided by the statute. Notwithstanding the service, if it had not been filed, as directed by the statute within the time allowed to answer, it would have been the duty of the clerk upon the application of the plaintiff to enter the default of the defendant."

MORGAN, J. Budge, C. J., and Rice, J. , concur.

OPINION

MORGAN, J.

On July 18, 1914, the above-named respondents filed their complaint in the district court whereby they sought to recover from Edith S. Hatfield, as administratrix of the estate of William J. Hatfield, deceased, the sum of $ 3,370.84, together with interest thereon, for labor performed and services rendered for deceased during his lifetime and at his instance and request, between March 15, 1911, and June 14, 1913. On July 23, 1914, appellant filed a demurrer to the complaint and the record fails to disclose what action if any, was taken upon it. However, the record in a companion case, wherein these respondents were plaintiffs and appellant, in her individual capacity, was defendant, shows that the demurrer interposed in that case was overruled by an order signed on November 21st and filed on November 25th and appellant was given until November 25th in which to answer. Respondents' counsel ask us to indulge the presumption that a like order was made in this case and cite for our consideration Smith v. Clyne, 16 Idaho 466, 101 P. 819, Guthrie v. Phelan, 2 Idaho 95, 6 P. 107, and United States v. Alexander, 2 Idaho 386, 17 P. 746. In view of the conclusion we have reached this point does not appear to be material and will not be decided, but we will proceed upon the theory that the demurrer was overruled on the same date, and that the same time was given within which to answer in this case as in the other.

On November 23, 1914, appellant moved for a continuance, and in support thereof filed affidavits showing that she was at that time in Portland, Oregon, where she was convalescing from a surgical operation which had been performed upon her there on November 10th, and that she would not be able, with safety to her health, to attend the trial at Rupert, Idaho, at the term of court next thereafter. Certain affidavits were filed by respondents in opposition to the motion and it was denied.

On December 3, 1914, appellant's answer was filed, in which she traversed the allegations of the complaint and denied the indebtedness, and on the next day counsel for respondents, in open court, moved for a default upon the ground that the answer had not been filed within the time theretofore fixed by order of the court. Although appellant was in court with her counsel and was ready for trial, Hon. Chas. O. Stockslager, the presiding judge, made the following order:

"The above-entitled matter coming regularly on to be heard upon motion of the plaintiffs for default for the reason that no answer has been filed as by law required or within the time fixed by the court and the defendant being present in court, objecting to the granting of said motion for default and it appearing to the court that upon the answer being proper and issues joined upon the day and at the time said cause was set down for hearing that the plaintiffs in said action are not able to proceed with the trial of said cause, for the reason that such answers were not filed as by law required or served upon the attorneys for plaintiffs, prior to the time said cause was called for hearing.

"IT IS THEREFORE ORDERED that said motion for default will be sustained and judgment for default entered in the above-entitled matter unless the defendant within ten days hereafter shall pay to the said plaintiffs, their expenses and all thereof incurred in attending upon said court as well as a reasonable attorney's fee, to be taxed in the sum of Fifty Dollars, also including witness fees and sheriff's costs as per the attached memorandum, and in case such amounts be paid said case shall stand continued until the next regular or special term of said court, and the said answer so proffered by the defendant may be filed in said cause."

It further appears that, subsequent to the entry of this order counsel for appellant procured the consent of Judge Stockslager to deliver to the clerk of the district court his client's check for the amount of money therein required to be paid, to be by him held pending the final determination of the case, in lieu of the payment of money thereby directed to be made, and that before the check could be procured and deposited Hon. Edward A. Walters, one of the judges of the fourth judicial district, on December 19, 1914, entered an order...