Leonard v. Brady

• Decision Date: 12 March 1915
• Parties: MABEL LEONARD, Appellant, v. JAMES H. BRADY et al., Respondents
• Court: Idaho Supreme Court

147 P. 284

27 Idaho 78

MABEL LEONARD, Appellant, v. JAMES H. BRADY et al., Respondents

Supreme Court of Idaho

March 12, 1915

DEFAULT-PREMATURE ENTRY OF - SHOWING REQUIRED TO SET ASIDE - DISCRETION OF TRIAL COURT - IRREGULARITY IN SERVICE OF SUMMONS.

1. It is permissible for the supreme court to determine whether or not a default should have been set aside by a district court for reasons not assigned in the motion to set aside such default, where it appears that the district judge considered such reasons at the suggestion of the party resisting such motion, and that they were unknown to the moving party until the date of argument on the motion, and that the moving party showed due diligence in endeavoring to ascertain all the facts prior to that date.

2. A district judge exercises a reasonable discretion in setting aside a default where it appears from the date shown by the certificate of service of summons signed by a deputy sheriff and also from his affidavit made subsequently, that sufficient time had been allowed for the appearance of a defendant before default was entered against him, and the contrary appears by another affidavit of the same officer showing another date; and it also appears that at the time the clerk entered such default it was based upon a certificate of service of summons signed by a deputy sheriff and accompanied by an unsigned and unsealed paper purporting to be a copy of such summons, but which had not been substituted as an original by the court.

APPEAL from the District Court of the Fourth Judicial District, in and for Elmore County. Hon. Edward A. Walters, Judge.

Order setting aside a default entered by clerk of the lower court against defendant. Affirmed.

Costs on appeal awarded to respondent.

Perky &amp Crow and Daniel McLaughlin, for Appellant.

There is no hint in the motion, or the order, that either the manner or fact of service was in any way called in question. Respondent was and is prevented from raising under his motion any other question than that of the date of service. Every other point (if there are other points involved) is waived. (14 Ency. Pl. & Pr. 117, and cases cited.)

"Not only must a party assign a ground for his motion, but he must assign all of the grounds for the relief sought which he may have, and objections known to exist and not raised at the time of the motion may be deemed waived." (14 Ency. Pl & Pr. 119, and cases cited; Bronzan v. Drobaz, 93 Cal. 647, 29 P. 254; Clarke v. Mohr, 125 Cal. 540 58 P. 176; Harder v. Harder, 26 Barb. (N. Y.) 409; Corwith v. State Bank, 8 Wis. 376; Gould v. Moss, 158 Cal. 548, 111 P. 925; Nevada Co. v. Farnsworth, 89 F. 164.)

No affidavit of merits was filed with the motion to set aside the default. Such affidavit is required. (Vollmer Clearwater Co. v. Grunewald, 21 Idaho 777, 124 P. 278; Hall v. Whittier, 20 Idaho 120, 116 P. 1031; Holzeman v. Henneberry, 11 Idaho 431, 83 P. 497.)

The proof necessary to overthrow the return must be clear and unequivocal. (32 Cyc. 514, and cases cited.)

The function of a summons is to inform the party against whom the action has been brought that he is being sued, and the nature of the suit brought against him, and the time within which he must appear and defend. An original summons performs this function as well or better than a copy. Any such irregularity as that complained of is immaterial and will not justify the setting aside of the service. (32 Cyc. 460, and cases cited; McDaniel v. Scurlock, 115 N.C. 295, 20 S.E. 451.)

The requirement of the statute that service shall be made by the delivery of a copy is evidently directory merely. (Clemmons v. State, 5 Okla. Cr. 119, 113 P. 238.)

"It is the fact of service which gives the court jurisdiction, and not the proof of service." (Call v. Rocky Mountain Bell Tel. Co., 16 Idaho 556, 133 Am. St. 135, 102 P. 146; Tewalt v. Irwin, 164 Ill. 592, 46 N.E. 13.)

W. C. Howie and Sullivan & Sullivan, for Respondent.

There are cases in which motions may be granted for reasons not assigned. (14 Ency. Pl. & Pr. 117, and cases cited in note; Hancock v. Youree, 25 Okla. 460, 106 P. 841; Skinner v. Terry, 107 N.C. 103, 12 S.E. 118.)

The practice of rendering judgments against the defaulting defendant where there is no proper proof of service upon him is a dangerous one and should not be tolerated. (Vermont L. & T. Co. v. McGregor, 5 Idaho 510, 51 P. 104; Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Applington v. G. V. B. Min. Co., 6 Idaho 216, 55 P. 241; Mills v. Smiley, 9 Idaho 317, 76 P. 783; Call v. R. M. Bell T. Co., 16 Idaho 551, 133 Am. St. 135, 102 P. 146.)

"It is only where a judgment by default has been regularly taken that an affidavit of merits is required to open it; if irregular, no merits need be shown." (1 Ency. Pl. & Pr. 355; Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. 198, 30 P. 585, 32 P. 452; 2 Ency. L. & P. 717, and cases cited; Hole v. Page, 20 Wash. 208, 54 P. 1123; Browning v. Roane, 9 Ark. 354, 50 Am. Dec. 218; Shanholtzer v. Thompson, 24 Okla. 198, 138 Am. St. 877, 103 P. 595.)

When, after order for publication of summons against an absent defendant has been duly made, the summons is personally served on such absent defendant out of the state, such service does not become complete until the expiration of the time prescribed in the order for publication; and a default judgment entered against him during said time is void and will be reversed on appeal. (Bowen v. Harper, 6 Idaho 654, 59 P. 179.)

DAVIS, District Judge. Budge and Morgan JJ., concur.

OPINION

DAVIS, District Judge.

--This action is pending on an appeal by the plaintiff, Mabel Leonard, from an order of the district court setting aside a default entered by the clerk against the defendant, James H. Brady. It appears that an alias summons was issued by the clerk, but that no record of that fact was made on the register of actions or otherwise in the clerk's office.

The original alias summons was served on Brady by a deputy sheriff of Bannock county and the officer's return of service was made on a purported copy of the alias summons not signed or sealed by the clerk, and no order was ever made by the district court authorizing the substitution of the copy for the original alias summons. The certificate of service made by the deputy states that service was made on March 14, 1914. Some two months after making the certificate the officer made an affidavit to the effect that the summons had been served March 15, 1914. The attorney for Brady thereupon filed a written motion to set aside the default upon the ground that it had been prematurely entered, which would have been true had service been made upon March 15th, but if made upon March 14th, the forty days allowed by law had expired when default was entered. Subsequently the officer's certificate of service was shown to him and he repudiated the first affidavit and made another to the effect that the date named in the certificate was the actual date upon which the alias summons had been served.

During the argument, when the motion came on for hearing before the district judge, a purported copy of the alias summons containing the return of the officer was produced by the attorney for the plaintiff, together with the second affidavit of the officer, and the attorney for the plaintiff then made a motion that certain defects...