Kingsbury v. Brown

• Citation: 60 Idaho 464,92 P.2d 1053
• Decision Date: 09 July 1939
• Docket Number: 6641
• Parties: HENRY B. KINGSBURY, Appellant, v. EDWIN J. BROWN, Respondent
• Court: United States State Supreme Court of Idaho

92 P.2d 1053

60 Idaho 464

HENRY B. KINGSBURY, Appellant, v. EDWIN J. BROWN, Respondent

No. 6641

Supreme Court of Idaho

July 9, 1939

JUDGMENT-DEFAULT-WAIVER-VACATION.

1. The entry of a default judgment against a defendant is merely a privilege which may or may not be exercised by the plaintiff.

2. The right to a default and also the default itself after entry may be waived.

3. A mere appearance generally after entry of default does not constitute a waiver of default, but some act disclosing an implied or express intent to waive the default is required.

4. Upon the filing of default and default judgment defendant was out of court, and the filing of his answer thereafter was unauthorized and added nothing to his legal rights.

5. Plaintiff's motion to strike unauthorized and void answer filed after filing of default and default judgment did not affect the conclusiveness of the default or the judgment.

6. A litigant attempts to remove and removes a cause from the state to the federal court at his peril and if he makes no appearance in the state court prior to the time of such removal and his default is entered, he cannot thereafter have such default vacated and judgment set aside on the ground of mistake, inadvertence or excusable neglect. (I. C. A., sec 5-905.)

7. An affidavit to set aside a judgment or default is insufficient to invoke or call into action the discretion of the court so as to enable it to vacate its judgment previously entered which merely states the judgment or order sought to be vacated was taken by oversight and inadvertence and does not state the facts and circumstances which it is claimed constitute the oversight and inadvertence. (I. C. A., sec 5-905.)

8. Where defendant did not by affidavit or otherwise point out by what mistake, inadvertence, surprise or excusable neglect he failed to file his answer within time, and the only conclusion that could be drawn from circumstances and defendant's affidavit was that he intentionally failed to file answer within time allowed, relying on thought that cause would be tried by federal court, to which he sought to remove the case, and that if the failure to file answer was not intentional the only excuse was a mistake of law made by an attorney who then represented him, order setting aside default was improper, requiring reversal. (I C. A., sec. 5-905.)

9. To vacate a default, it is incumbent on defendant to show that his mistake was one of fact and not of law, and the neglect of a lawyer to familiarize himself with the law governing the practice of the forum within which his case is pending is not excusable. (I. C. A., sec. 5-905.)

10. The action of trial court in setting aside a default is governed by sound, legal discretion, and where it appears that such discretion has been abused, the order setting aside a default will be reversed on appeal.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Bert A. Reed, Presiding Judge.

Appeal from order setting aside default judgment. Reversed.

Judgment reversed. Costs awarded to appellants. Petition for rehearing denied.

Chas. E. Horning and F. C. Keane, for Appellant.

Where an application to set aside a default and vacate a judgment is made entirely upon affidavits, the appellate court will make an original examination of the evidence and will exercise its judgment and discretion the same as if the application were presented to it in the first instance. (Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

A litigant attempts to remove and removes a cause from the state to the federal court at his peril and if he makes no appearance in the state court prior to the time of such removal and his default is entered, he cannot thereafter have such default vacated and the judgment set aside on the ground of mistake, inadvertence or excusable neglect. (Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; State v. American Surety Co., 26 Idaho 652, 145 P. 1097, Ann. Cas. 1916E, 209; Citizens Light, Power & Telephone Co. v. Usnik, 26 N. M. 494, 194 P. 862; McCanna v. Mutual Investment & Agency Co., 37 N. M. 597, 26 P.2d 231.)

The showing on a motion to vacate must disclose that the mistake was one of fact and not of law, and the neglect of the respondent to familiarize himself with the practice wherein the case is pending is not excusable. (Domer v. Stone, 27 Idaho 279, 149 P. 505; Valley State Bank v. Post Falls Land & Water Co., 29 Idaho 587, 161 P. 242.)

J. Ward Arney, for Respondent.

Party insisting he is not in court must keep out for all purposes, except to make that objection. (Pingree Cattle Loan Co. v. Webb, 36 Idaho 442, 211 P. 556; Pittenger v. Al G. Barnes Circus, 39 Idaho 807, 230 P. 1011; American Surety Co. v. District Court, 43 Idaho 589, 254 P. 215; McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293.)

Moving for affirmative relief after judgment constitutes general appearance. (Elliott & Healy v. Wirth, 34 Idaho 797, 198 P. 757; Central Deep Creek, etc., v. C. C. Taft Co., 34 Idaho 458, 202 P. 1062; Clawson v. Boston Acme etc. Co., 72 Utah 137, 269 P. 147, 59 A. L. R. 1318, 1332, 1333; American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A. L. R. 298; Baldwin v. Iowa State T. M. Assn., 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1224.)

Appellant waived the first default by (a) thereafter moving to strike the petition to remove; and (b) claiming the second default; and waived the first and second defaults by thereafter moving to strike the answer of Brown.

BUDGE, J. Givens and Holden, JJ., concur. Ailshie, C. J., did not sit at the hearing nor participate in the decision. Morgan, J., did not participate in the decision.

OPINION

BUDGE, J.

January 18, 1938, appellant instituted this action against respondent, an attorney at law residing at Seattle, Washington, and others, seeking to recover from respondent $ 5,555.54 on account of certain moneys advanced respondent and certain payments due appellant under the terms of a contract entered into between appellant and respondent. Service of process was regularly had upon respondent. On February 15, 1938, respondent petitioned for the removal of the cause to the District Court of the United States and on February 16th appellant filed a praecipe for default and a motion to strike the petition, which motion was denied, and on March 3d an order of removal was made.

On May 23, 1938, the District Court of the United States entered an order remanding the action to the state court, a certified copy of the order being filed in the office of the clerk of the state court on May 24, 1938. On the same day, May 24th, a praecipe for the default of respondent was filed in the office of the clerk of the lower court and default entered. On May 26th judgment was entered against respondent for $ 5,555.54.

On the day judgment was entered, May 26th, respondent caused to be filed a motion for an order vacating the default entered against him February 16th, and on May 31st filed a motion for an order vacating the default and judgment entered against respondent on May 26th.

June 2d the separate answer of respondent was lodged for filing with the clerk of the lower court. September 13th, 1938, the trial judge made an order, filed and entered September 15th, setting aside the judgment, vacating the defaults taken against appellant, and ordering the proposed answer and counterclaim or cross-complaint filed.

The single specification of error presented upon this appeal from the court's order of September 13th, is that the court erred in making the order by which the court ordered all defaults against respondent vacated; that the tendered answer and counterclaim be filed; that the restraining order against the issuance and levy of execution be continued; and, that the judgment entered in favor of appellant and against respondent be vacated and set aside.

Appellant urges the order of the court was erroneous and void in that there was no showing to justify the court in concluding default had been entered by reason of mistake, inadvertence or excusable neglect; that the time for answer expired long before September 15, 1938, and on February 16, 1938; and the record conclusively demonstrates that the judgment was taken against respondent by reason of his gross carelessness and culpable neglect.

Respondent in support of affirmance of the order of the trial court urges two main propositions: First, that appellant waived the defaults by making general appearances, asking affirmative relief subsequent to the entry of the defaults; and, second, that this court favors trial upon the merits and disfavors technical default judgments, refusing to disturb an order of the trial court vacating a default judgment where a meritorious defense has been tendered and sound legal discretion has not been abused.

Respondent urges that whatever technical advantage may have been gained by the entry of the defaults, appellant by his own affirmative acts released such advantage. That is, that upon entry of default of February 16th appellant concurrently sought affirmative relief from the state court by moving on February 16th to strike the removal proceedings, and on July 6, 1938, moved to strike respondent's answer endorsed as filed on June 2, 1938, which was after the entry of the default on May 24, 1938. Respondent contends that in interposing both motions, appellant appeared generally, not by special appearance in either instance, thereby waiving the finality of the defaults and the judgment, relying upon the proposition that a party insisting he is not in court must keep out for all purposes except to make that objection citing the following cases in support thereof: Pingree...