Lukey v. Thomas, 4133

CourtSupreme Court of Nevada
Citation333 P.2d 979,75 Nev. 20
Docket NumberNo. 4133,4133
PartiesJack LUKEY, dba Nevada Plumbing & Heating Company, Appellant, v. Merna M. THOMAS and Ralph H. Thomas, Respondents.
Decision Date09 January 1959

Richards & Schindler, Reno, for appellant.

Leonard T. Howard, Reno, for respondents.

McNAMEE, Justice.

Appellant filed suit upon a promissory note. Summons and complaint were personally served upon the defendant October 28, 1957. When no appearance had been made by either defendant, plaintiff caused their default to be entered on December 12, 1957 and on that day he had judgment entered for the amount of his claim. This was twenty-three days after default could have been taken.

On April 22, 1958 defendants moved to set aside the default ant to vacate the judgment, for the reason of the 'inadvertence, surprise and excusable neglect of the defendants.' The motion was granted and this is an appeal from the order granting such relief.

This court has repeatedly held that a motion to set aside a default and vacate the judgment resulting therefrom is addressed largely to the sound discretion of the court and will not be disturbed on review, unless there has been abuse of such discretion. This discretion is a legal discretion, however, and cannot be sustained where there is no competent evidence to justify the court's action. Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098.

Defendant's written motion and notice thereof stated that it would be based on the affidavit of Leonard T. Howard, attorney for defendants, filed therewith and upon Rules 55 and 60, N.R.C.P. 1

Although Rule XI of Rules of the District Court specifies the manner of making motions, 2 the court minutes reveal only the following:

'Counsel for defendants made his motion pursuant to notice of motion on file. The motion was argued by counsel for the respective parties. The Court ordered that the defendant's motion to vacate a default judgment be granted and the defendants have five days within which to file an answer.'

While the minutes do not specifically state that the order was based on any evidence, we assume from the court's written order signed and filed the day subsequent to the hearing, that it was based on the three affidavits on file. 3

These three affidavits consisted of (1) the affidavit of defendants' counsel mentioned in the written motion, (2) said counsel's amended affidavit filed subsequent to the filing of the motion, and (3) the counter-affidavit of plaintiff's counsel, Donnell Richards, in opposition to said motion. They constitute the only evidence upon which the lower court could exercise its discretion in determining whether the defendants had a good defense and were not guilty of inexcusable delay.

We are not concerned with the third affidavit, as it is in effect a mere denial of the other two.

The first affidavit states:

'* * * the defendants did inform the affiant, their attorney, that they felt they had a good and proper defense to the action, and that there were various papers and documents concerning this transaction which would have to be located in voluminous files concerning their involvement with the corporation known as Thomas G. Stone Enterprises, Inc.

'That the subject matter of this suit was a result of a transaction with said Thomas G. Stone Enterprises, Inc. That shortly following October 29, 1957, the defendants did inform the affiant that they were having difficulties in obtaining the documents and papers concerning the transaction, since they were in storage, but they were doing their best to obtain them. Following this your affiant, attorney for defendants, did stipulate with counsel for plaintiff to extend the time for answering or otherwise pleading to the complaint. That subsequent thereto the defendants did obtain and bring into the office of affiant and attorney for defendants, certain papers and documents pertaining to the transaction.

'That during the interim period, and following the delivery of said documents by the defendants to their attorney, various contacts were made with the attorney for the plaintiff, informing him that the answer or other pleadings to the complaint would be filed as quickly as possible.

'That the attorney for plaintiff did state, in what was taken to be a joking manner, that a default had been entered against the defendants, and that after a few of such contacts the plaintiff's counsel did definitely state that he had had a default entered against the defendants upon the insistence of his client; and this was the first knowledge that affiant and attorney for defendants had that a default had been entered against the defendants.'

The foregoing part of said affidavit has no probative value of asserting any defense to the action. With respect to showing a justifiable delay, the pertinent averments show just the opposite. True, a stipulation to extend time is alleged, but if in fact there were such a stipulation, defendants would be relying on a verbal stipulation and one so vague as to the duration of the extended period that it amounts to no evidence at all. Haley v. Eureka County Bank, supra; Stretch v. Montezuma Min. Co., 29 Nev. 163, 86 P. 445.

The concluding portion of this affidavit states merely legal conclusions and this has no evidentiary value. 4

Defendants' said amended affidavit alleges that affiant, defendants' counsel,

'* * * at all times noted herein affiant was practicing law individually, other than in an association and that a very important, detailed and complicated legal action was filed on or about the 27th day of November, 1957, which involved a considerable amount of money, together with certain lumber held as security. That immediately following the legal action there were numerous creditors' rights involving chattel mortgages, attachments and third-party claims involved in the legal action, which required practically full time attention on behalf of affiant. That this legal action did encompass a period of time, which was a direct cause in affiant's neglect in failing to answer plaintiff's complaint.'


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9 cases
  • Stoecklein v. Johnson Elec., Inc., 23302
    • United States
    • Supreme Court of Nevada
    • March 24, 1993 a legal discretion and cannot be sustained where there is no competent evidence to justify the court's action. Lukey v. Thomas, 75 Nev. 20, 22, 333 P.2d 979 (1959). Under NRCP 60(b)(1), the district court may relieve a party from a final judgment on grounds of mistake, inadvertence, surp......
  • Hotel Last Frontier Corp. v. Frontier Properties, Inc.
    • United States
    • Supreme Court of Nevada
    • April 3, 1963
    ...the ruling reversed on appeal; Haley v. Eureka Co. Bank, 20 Nev. 410, 22 P. 1098; Esden v. May, 36 Nev. 611, 135 P. 1185; Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979; Kelso v. Kelso, 78 Nev. 99, 369 P.2d 668; (3) cases where the default judgment was not set aside and the ruling affirmed on ap......
  • Minton v. Roliff, 5996
    • United States
    • Supreme Court of Nevada
    • June 18, 1970 no competent evidence to justify the court's action. Haley v. Eureka County Bank, 20 Nev. 410, 22 P.2d (sic) 1098.' Lukey v. Thomas, 75 Nev. 20, 22, 333 P.2d 979 (1959). See also McClellan v. David, 84 Nev. 283, 439 P.2d 673 (1968), where we reversed the setting aside of a default judgme......
  • Cicerchia v. Cicerchia
    • United States
    • Supreme Court of Nevada
    • April 4, 1961
    ...v. Gibbs, 69 Nev. 167, 243 P.2d 1050, and will not be disturbed on review unless there has been an abuse of discretion. Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979; Schultz v. King, 68 Nev. 207, 228 P.2d 401. In Blundin v. Blundin, 38 Nev. 212, 147 P. 1083, 1084, this court through Chief Just......
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