Kivett v. Crouch
Decision Date | 29 June 1940 |
Docket Number | 6770 |
Citation | 61 Idaho 536,104 P.2d 21 |
Parties | K. W. KIVETT, Respondent, v. CLAUDE CROUCH, Appellant |
Court | Idaho Supreme Court |
ATTORNEYS AT LAW-NEGLECT OF DUTY-DEFAULTS-VACATION OF-JUDICIAL DISCRETION-ABUSE OF.
1. Where it appeared from face of record on careful investigation by attorneys that service of summons on their client was void and that if judgment by default were taken against him it would be set aside on motion, there was nothing to arouse suspicion that an affidavit and order for substituted service had been filed, and there was no evidence of negligence on part of attorneys, statute relating to the neglect or failure of an attorney to file or serve a paper within time limited and providing for penalizing attorney for negligence had no application. (I. C. A., sec. 5-905.)
2. Counsel who without fault on their part were misled by the record into permitting a default judgment to be taken against their client had a right to rely on the record.
3. Where counsel without fault on their part were misled by the record into permitting a default judgment to be taken against their client, and they made a timely motion to vacate judgment and default, supported by an adequate showing of facts constituting reason for default and that their client had a good and meritorious defense to the action, it was an abuse of judicial discretion to deny the motion.
The foregoing syllabus is by West Publishing Company, that following is by author of opinion.
I. The part of I. C. A., section 5-905, which relates to the failure or neglect of an attorney to file or serve a paper within the time limited therefor, and which provides for penalizing him for such failure, has no application to a case wherein the attorney has not been guilty of negligence, or failure to discharge any duty specified in the section.
II. An attorney has a right to rely on the record of the court, made in a case wherein his client is a litigant. If he is misled by the record into permitting a default judgment to be taken against his client, and if he makes a timely motion to vacate the default and judgment, supported by an adequate showing of the facts constituting the reason for the default, and that his client has a good and meritorious defense to the action, it is an abuse of judicial discretion to deny it.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Thomas E. Buckner, Judge.
Judgment by default and order overruling a motion to vacate the default, the judgment and the writ of execution issued thereon. Reversed.
Judgment and order reversed. Costs awarded to appellant.
Smith & Ewing and J. F. Cromwell, for Appellant.
When the trial court refuses to open a default and permit a trial on the merits, the appellate court, even though there is no apparent arbitrary abuse of discretion, will extend its inquiry to determine, in the interest of justice and right whether or not the order preventing a trial on the merits should be disturbed, and no great abuse of discretion is required to justify a reversal of said order denying the motion to set aside default. (Dellwo v. Petersen, 34 Idaho 697, 203 P. 472; Kynaston v. Thorpe, 29 Idaho 302, 158 P. 790; Domer v. Stone, 27 Idaho 279, 149 P. 505; Roehl v. Texas Co., 107 Cal.App. 708, 291 P 262; Greene v. Montana Brewing Co., 32 Mont. 102, 79 P. 693.)
The reliance upon court records which prove to be in error is a mistake of fact, and default judgment entered against a party because of the reliance thereon by his legal representative, should be set aside, on prompt application, on the ground of mistake, inadvertence, surprise or excusable neglect. (Madson v. Petrie Tractor & Equipment Co., 106 Mont. 382, 77 P.2d 1038; Melde v. Reynolds, 129 Cal. 308, 61 P. 932; Blythe v. Hinckley, (Cal.) 84 F. 228; Leslie I. Gumport, Inc., v. Groell, (N. Y.) 225 A.D. 696, 232 N.Y.S. 414; Toth v. Samuel Phillipson & Co., (Ill.) 250 Ill.App. 247.)
Earl E. Garrity, for Respondent.
Defendant must suffer consequences of his acts in not appearing when served by summons. (Morbeck v. BradfordKennedy Co., 19 Idaho 83, 113 P. 89.)
The court did not abuse his discretion in denying motion to vacate judgment. (Morbeck v. Bradford-Kennedy Co., supra; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900, 903.)
--This is an appeal from a judgment by default and from an order overruling a motion to vacate and set aside the default, the judgment and the writ of execution issued thereon, and to permit defendant to answer the complaint. The question presented is: Did the district judge commit a breach of judicial discretion in overruling the motion?
The jurisdiction of the court to enter the judgment has not been questioned on this appeal. The record shows the summons was served on appellant in Grant County, Oregon, August 9, 1939. The undisputed affidavit of Stewart S. Maxey, one of appellant's attorneys in the district court, filed in support of the motion to vacate, contains the following:
The motion was accompanied by a proposed answer showing appellant had a good defense to respondent's cause of action for $ 1,696.45 save and except her claim for $ 233.40 thereof.
The record shows respondent filed a complaint in the Circuit Court in Oregon on the cause of action stated in the complaint thereafter filed by her in this case. Appellant answered in the Oregon case and it was pending on complaint and answer when the default and judgment were entered in this case.
Upon the filing of the complaint herein counsel for respondent made and caused to be filed an affidavit in support of an ex parte application for an order authorizing the service of summons on appellant outside the state. The order was made by a deputy clerk of the district court, who, by mistake, and without fault of appellant or his attorneys, filed the affidavit and order in another case than this, and entered them in the register of actions as having been filed in the other case. Because of this mistake of the deputy clerk the searches and examinations of the record, as above set out, made by counsel for appellant, failed to disclose the existence of the affidavit or order, or that they had been made or filed.
I. C. A., section 5-905 contains the following:
The condition of the record, prior to and at the time the default judgment was entered, justified counsel for appellant in their opinion that...
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