King v. Mitchell

• Decision Date: 15 February 1950
• Citation: 188 Or. 434,214 P.2d 993
• Parties: KING v. MITCHELL.
• Court: Oregon Supreme Court

214 P.2d 993

188 Or. 434

KING v. MITCHELL.

Supreme Court of Oregon.

February 15, 1950

[Copyrighted Material Omitted]

This is an appeal from an order denying a motion to set aside a default judgment.The defendant and appellantMercell Mitchell(erroneously impleaded as Murcell Mitchell) was a defendant jointly with his employer, Edward Hines Lumber Company, in an action brought by the respondent, Fay King, to recover for the loss of consortium of her husband Robert L. King, resulting, as her complaint alleged, from injuries negligently inflicted upon him by the defendants.The alleged injuries were sustained on August 30, 1943, in a collision between an automobile driven by King and another automobile owned by the defendant, Edward Hines Lumber Company, and operated by the defendant Mitchell as the Lumber Company's agent and employee.

The complaint was filed in Grant County on October 3, 1947, over four years after the accident occurred.Both defendants were served with summons and complaint in that county on October 20, 1947.The Lumber Company on October 28, 1947, demurred to the complaint on the ground that the action was barred by § 1-206, O.C.L.A., the two-year statute of limitations.Ultimately the court sustained the demurrer and entered judgment for the defendantLumber Company.Under the circumstances hereinafter recounted, the defendant Mitchell defaulted.After a hearing without a jury, the court, on May 12, 1948, entered judgment against Mitchell for $10,000.00 for loss of consortium, $2,500.00 medical expenses and costs.

After learning of the judgment, Mitchell, on May 17, 1948, filed a motion, supported by affidavits and a showing of merits under § 1-1007, O.C.L.A., to be relieved from the default.The motion was denied by order entered April 11, 1949.The question is whether this was an abuse of judicial discretion.

The showing in support of the motion is uncontradicted and is to the following effect:

The defendant Mitchell made oath that he is an employee of the Edward Hines Lumber Company, resides at Seneca, Grant County, and, immediately after being served with summons and complaint on October 20, 1947, he delivered the papers at Seneca to Pat Maitland, the Safety and Personnel Director of the Lumber Company, 'and the person directly responsible in said company for the handling of such matters'.Maitland told Mitchell that 'he would arrange with the said Edward Hines Lumber Company for the proper defense of the action.'Mitchell's affidavit proceeds: 'That I heard nothing further from Pat Maitland or any other officials of said company, and assumed that my rights in said action were being protected until today (May 17, 1948), and I have just been informed that Default was taken against me on the 31st day of October, 1947, and that Judgment was taken against me in said case on the 12th day of May, 1948 * * *'.

Pat Maitland, in a supporting affidavit, avers that, upon receiving the summons and complaint from Mitchell, 'I advised Murcell Mitchell that the Edward Hines Lumber Co. would defend the action on his behalf and I took the Summons and Complaint to the Company's offices at Hines, Oregon, and contacted the General Manager, A. R. Dewey.The documents were forwarded to the Chicago office.I further state that since service was made on Murcell Mitchell that he has inquired as to the progress of the case and I have informed him that he was being defended by the insurance carrier.'

R. E. Kriesien, an attorney, was retained by the Globe Indemnity Company to defend the Lumber Company in the action.He deposed in a supporting affidavit that he filed a demurrer on behalf of the Lumber Company, and that he had no knowledge that default had been entered against Mitchell until he received a copy of the judgment entry dated May 12, 1948.He further swore: '* * * I further state that upon receipt of the copy of Judgment I conferred with P. H. Maitland, employed by the Edward Hines Lumber Co., and was informed that he had advised Murcell Mitchell that the Edward Hines Lumber Co. would defendant this action on his behalf.I further state that the Edward Hines Lumber Co. failed to notify me of such facts and that prior to the 13th day of May, 1948, I had no knowledge that such representations had been made to Murcell Mitchell, nor that service of Complaint and Summons had been made upon the said Murcell Mitchell.'

With the motion to vacatethe defendant Mitchell tendered a demurrer based on the ground that the action was barred by § 1-206, O.C.L.A.Later an amended motion, with affidavits, was filed, but, as these added nothing material to the original motion, no further reference to them need be made.

As stated, Mitchell was served with summons and complaint on October 20, 1947, and, according to Mitchell's affidavit, default was taken against him on October 31, 1947.The record shows that the motion for a default order was filed November 4, 1947, and the order entered on the same day, although the order contains this recital, 'dated in Chambers at Ontario, Oregon, this 31st day of October, 1947'.The discrepancy, however, is of no importance here.

The Lumber Company's demurrer was argued orally on November 29, 1947, and taken under advisement by the court.On May 11, 1948, the court rendered an opinion in writing which held that the action against the Lumber Company was barred by the two-year statute of limitations.On the following day the hearing on the question of damages against Mitchell was had in Grant County, the plaintiff appearing in person and by her counsel.There were no other appearances.The judgment order of that date, May 12, 1948, sustains the demurrer of the Lumber Company, dismisses the action against it, and gives judgment to it for costs, and awards judgment to the plaintiff against Mitchell as heretofore stated.A copy of the order was mailed on that day by counsel for the plaintiff to Casey & Kriesien, attorneys for the Lumber Company, at Burns, Oregon.

E. F. Bernard, Portland, argued the cause for appellant.On the brief were Collier & Bernard and William F. Bernard, of Portland, and Yokom & Campbell, of John Day.

Harold Banta, Baker, argued the cause for respondent.On the brief were Hallock, Donald, Banta & Silven, of Baker, and E. P. Truesdell, of Canyou City.

Before LUSK, C. J., and BRAND, BAILEY, HAY and PAGE, JJ.

LUSK Chief Justice.

Section 1-1007, O.C.L.A., provides: 'The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by this code, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.'

The motion under consideration was filed pursuant to the second clause of the foregoing statute.There are certain well-established rules for the decision of such applications to which we now call attention.In Payne v. Savage,51 Or. 463, 465, 94 P. 750, 751, the court, speaking through Mr. Justice Robert S. Bean, said: 'An application to set aside a default or for permission to plead after the time allowed by law has expired is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed on appeal, unless there is an abuse of discretion.This rule has so often been declared and applied by this court that it is useless to cite authorities.Each case must depend on its own peculiar facts.'

The appellate court is less apt to interfere with the trial court's discretion when the judgment was set aside than when it was not, for in the former case the cause is reopened and justice will yet be done on the merits between the parties.Hall v. McConey,152 Mo.App. 1, 132 S.W. 618.This rule is stated as follows in 1 Freeman on Judgments, 5th Ed., 579, § 291: 'An appellate court, owing to the remedial character of the statutes and the policy of applying them liberally to permit an opportunity to present a substantial defense where that right would otherwise be lost, listens somewhat more readily to an appeal from an order denying relief than to one granting relief.While it will usually sustain the action of the court below, whether for or against the motion--even though upon the same state of facts it would have sustained an opposite conclusion--it is much more disposed to affirm an order when the result is to compel a trial upon the merits than it is when the judgment has been allowed to stand and it appears that a substantial defense could be made.This explains what might otherwise seem to be a conflict in some of the decisions.'

The discretion of which the statute speaks is a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to defeat the ends of justice.Snyder v. Consolidated Highway Company,157 Or. 479, 485, 72 P.2d 932, and other Oregon cases there cited.It is said by an authority relied on by counsel for plaintiff: '* * * If the moving party makes a clear and unquestionable showing that he has a good defense or cause of action on the merits, of the benefit of which he has been deprived without fault on his part, the court has no discretion to deny him relief, and should it do so, its action will be set aside, and proper relief ordered by the appellate court.'1 Freeman on Judgments, 5th Ed., 578, § 291.

The statute is to be construed liberally to the end that every litigant shall have his day in court and his rights and duties determined only after a trial upon the merits of the controversy.Marsters v. Ashton,165...