Kynaston v. Thorpe

• Decision Date: 01 July 1916
• Parties: JOHN KYNASTON and STELLA KYNASTON, His Wife, Appellants, v. JOHN A. THORPE and ANNIE B. HALVORSEN, Respondents
• Court: Idaho Supreme Court

158 P. 790

29 Idaho 302

JOHN KYNASTON and STELLA KYNASTON, His Wife, Appellants, v. JOHN A. THORPE and ANNIE B. HALVORSEN, Respondents

Supreme Court of Idaho

July 1, 1916

JUDGMENT BY DEFAULT-MOTION TO VACATE-SUFFICIENCY OF SHOWING.

1. Granting or refusing to grant a motion to vacate a judgment and set aside a default which have been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect is a matter which rests largely within the sound judicial discretion of the trial judge, and his action in so doing will not be reversed except in cases wherein that discretion has been abused. Where, however, the application was heard on affidavits and the files in the action, and the supreme court has all the showing before it that was before the trial judge who passed upon the motion, it is in as favorable a position to consider the matter as he was, and will examine and be governed by the facts so disclosed.

2. The facts upon which the order vacating the judgment and setting aside the default was based, examined, and held to be insufficient to justify the court in making such order.

[As to opening or vacating judgments because of negligence or inadvertence of attorney, see notes in 80 Am.St. 264; 96 Am.St. 108]

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. J. Guheen, Judge.

Motion to vacate a judgment and set aside a default. Motion granted. Plaintiff appeals. Reversed.

Order reversed. Costs awarded to appellants.

Budge &amp Barnard, for Appellants.

To justify the court in setting aside the default judgment the applicant must show that the default occurred by reason of mistake, inadvertence, surprise or excusable neglect, and he must also show that he has a good defense to the cause of action set forth in the complaint. (Holland Bank v Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v Henneberry, 11 Idaho 428, 83 P. 497; Harr v Kight, 18 Idaho 53, 108 P. 539.)

An applicant to set aside a default judgment must show that he has acted in good faith and exercised due diligence in the prosecution and protection of his rights, such as an ordinarily prudent man would exercise under similar conditions. (Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7.)

Respondent is no more entitled to be relieved from the default because of the neglect of Douglas than he would be for the neglect of his attorney, if such attorney had been negligent. In either case it would be the fault of an agent intrusted to discharge a certain duty. (Thomas v. Chambers, 14 Mont. 423, 36 P. 814; Liverpool etc. Ins. Co. v. Perrin, 10 N.M. 90, 61 P. 124; Ramey v. Smith, 56 Wash. 604, 106 P. 160; Domer v. Stone, 27 Idaho 279, 149 P. 505.) The neglect of Douglas, Thorpe's agent, was the neglect of Thorpe, and was not sufficient ground to justify the court in vacating the judgment. (Texas Fire Ins. Co. v. Berry, 33 Tex. Civ. 228, 76 S.W. 219; Morris v. Liverpool etc. Ins. Co., 131 N.C. 212, 42 S.E. 577; Warner v. Miner, 41 Wash. 98, 82 P. 1033.)

McDougall & Jones, for Respondents.

It is clearly within the discretion of the trial judge to vacate a judgment entered by mistake, etc. (Sec. 4229, Rev. Codes.) Application for relief under this section is addressed to the sound legal discretion of the trial judge. (Watson v. San Francisco & H. B. R. Co., 41 Cal. 17; Melde v. Reynolds, 129 Cal. 308, 311, 61 P. 932; Winchester v. Black, 134 Cal. 125, 127, 66 P. 197; Hanthorn v. Oliver, 32 Ore. 57, 62, 67 Am. St. 518, 51 P. 440; Coos Bay Nav. Co. v. Endicott, 34 Ore. 573, 574, 57 P. 61.)

"The order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion; and 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." (Miller v. Carr, 116 Cal. 378, 58 Am. St. 180, 48 P. 324; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Pittock v. Buck, 15 Idaho 47, 96 P. 212; Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Pease v. Kootenai County, 7 Idaho 731, 65 P. 432; Western Loan & Sav. Co. v. Smith, 12 Idaho 94, 103, 85 P. 1084; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Vane v. Jones, 13 Idaho 21, 88 P. 1058; Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7; Culver v. Mt. Home Electric Co., 17 Idaho 669, 107 P. 65; Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; Harr v. Kight, 18 Idaho 53, 108 P. 539; Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Brooks v. Orchard Land Co., Ltd., 21 Idaho 212, 121 P. 101.)

MORGAN, J. Sullivan, C. J., concurs. DAVIS, District Judge, Dissenting.

OPINION

MORGAN, J.

This action was commenced for the purpose of procuring a decree of the district court quieting appellant's title to the waters of a certain stream in Bannock county. The complaint was filed on July 21, 1913, and summons was thereupon issued and served upon respondent and his codefendant, Annie B. Halvorsen. On August 19, both defendants appeared and demurred to the complaint. On December 12th of the same year the demurrer was withdrawn and the defendants were given twenty-five days within which to serve and file an answer. On January 27, 1914, no answer having been served or filed, judgment by default was entered. On July 20th of that year a motion to vacate the judgment and set aside the default was filed, based upon the grounds: First, that they were permitted to be taken and entered through mistake, inadvertence and excusable neglect on the part of respondent; second, that the judgment does not conform to the allegations in or the prayer of the complaint. The motion was based upon the records and files of the action and was supported by certain affidavits, among them being one made by respondent showing that he first became aware that a default had been entered against him on or about May 21, 1914. On May 15, 1915, an order was entered granting the motion upon the ground first above mentioned. This appeal is from that order.

It has been frequently decided by this court, and may be said to be a settled rule, that granting or refusing to grant a motion to vacate a judgment and set aside a default which have been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect is a matter which rests largely within the sound judicial discretion of the trial judge, and that his action in so doing will not be reversed except in cases wherein that discretion has been abused. In cases of this kind, however, this rule is to be applied together with the one announced in case of Hall v. Whittier, 20 Idaho 120, 116 P. 1031, wherein it was said "The application was heard on affidavits and files in the case, and we have all the showing before this court that was before the trial judge who granted the motion, and we are therefore in as favorable a position for considering the matter as was the trial judge. (Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Van Camp v. Emery, 13 Idaho 202, 89 P. 752.)" We will therefore examine and be governed by the facts relied upon by respondent, which are undisputed.

It appears that after being served with the summons, and before the time for answer had expired, respondent and his codefendant consulted and retained an attorney, paid him a portion of an agreed retainer fee, and promised to pay the balance thereof within a few days after returning to their homes, which are located several miles from the city wherein the attorney resides; that before going home respondent saw one Douglas, who was indebted to him, and with whom he arranged to pay the balance due from him to the attorney; that although Douglas promised respondent to make the payment to the attorney, he forgot all about it and went to California without doing so. It further appears that the attorney filed the demurrer and stood ready to prepare and file an answer for both defendants, and a cross-complaint on behalf of respondent, upon receiving the balance of his fee; that he heard nothing from either of his clients, and upon being asked by counsel for appellants what action he intended to take with respect to the demurrer, he consented that it might be overruled, and was granted twenty-five days within which to answer, as hereinbefore stated. The attorney wrote to his clients relative to the case, but his letters to Thorpe were directed to the wrong address and were not delivered to him nor were they returned to the writer. Respondent presented with his motion an answer and cross-complaint, which appear, if true, to state a complete defense to the cause of action alleged in the complaint and a good cause of action against appellants.

From the foregoing it will be seen that twenty days elapsed after the answer was due and before the entry of judgment; that after employing counsel and arranging with Douglas to pay the balance due on his fee more than nine months intervened, during which respondent made no inquiry about the matter, nor does he appear to have sought to ascertain whether or not the fee had been paid or whether or not his interests were being safeguarded, and that, after being informed that a default judgment had been taken against him, nearly two months more were permitted to go by, during which he did not offer to make an appearance. It does not seem to us that respondent has conducted himself in this matter as a reasonably prudent man would do under like circumstances, and that his neglect, for so long a time, to look after his important business is not excused or satisfactorily explained by the showing made.

It is not contended that the attorney was taken by surprise, nor that the entry of the default and judgment was due...