Madson v. Petrie Tractor & Equipment Co.

• Decision Date: 23 March 1938
• Docket Number: 7766.
• Citation: 77 P.2d 1038,106 Mont. 382
• Parties: MADSON v. PETRIE TRACTOR & EQUIPMENT CO.
• Court: Montana Supreme Court

77 P.2d 1038

106 Mont. 382

MADSON v. PETRIE TRACTOR & EQUIPMENT CO.

No. 7766.

Supreme Court of Montana

March 23, 1938

Appeal from District Court, Yellowstone County, Thirteenth District Guy C. Derry, Judge.

Action by George A. Madson against the Petrie Tractor & Equipment Company, a corporation, to collect commissions alleged to be due plaintiff as a salesman. A default judgment was entered for plaintiff, and from an order denying a motion to set the judgment aside, defendant appeals.

Reversed with instructions to set aside the judgment and permit defendant to answer.

M. J Lamb, of Billings, for appellant.

Tansil & Bowen, of Billings, for repondent.

MORRIS Justice.

This is an appeal from an order denying a motion to set aside a default judgment.

The plaintiff, a sales agent of the defendant, brought an action to collect commissions alleged to be due for sales made. The facts are substantially as follows: Summons was issued and served on D. R. Petrie, president of defendant corporation, on July 21, 1937. Return was made of the summons by mailing the same on the 23d day of July to counsel for the plaintiff, and it remained in his office until August 11th, at which time it was filed with the clerk of the court by counsel for plaintiff, the default of the defendant entered, and at the same time judgment given and made granting the plaintiff the full amount of the relief sought.

A number of affidavits given in support of the motion to set the default aside establish these facts: At the time service was made upon the president of defendant corporation, July the 21st, he talked the matter over with his wife, who was also an officer of the company, but knowing that his attorney was out of town, placed the papers on his desk and left for Sidney, Montana, "within an hour." He returned to his office in Billings on Saturday the 24th of July, and left again to attend to business in other parts of the state and returned from that trip Saturday, July 31st. He talked to his wife about the papers that were served on him on the 21st, but gave the matter no further consideration until he was called on the 'phone by M. J. Lamb, his attorney, on August 3d, and was requested to advise his attorney as to what papers had been served upon him, and particularly inquiry was made about the summons and complaint. According to his affidavit he advised his attorney he did not fully understand just what papers had been served, but all of them had been delivered by his wife to Mr. Gullickson, an associate of Mr. Lamb, and further advised Mr. Lamb that if there was no summons and complaint among the papers delivered, such papers could not have been served upon defendant. At that time he further conferred with his wife and made another search for the papers, but could not find anything of the kind and so reported to his attorney, who advised him he would investigate the matter and do whatever was necessary in the case. Petrie states that he gave the matter no further consideration until August 6, at which time his attorney telephoned to him and the secretary of the corporation advising them that they should appear at the court house for a hearing on the application of plaintiff for the appointment of a receiver.

The motion for the appointment of a receiver was denied, but at the hearing of that matter Mr. Lamb, as one of the reasons why the receivership should not be granted, made the following statement: "There is no showing that there has been any service of any papers or process of any kind or description in this case on the defendant." This statement was made in the presence of the attorney for the plaintiff and of other parties.

Some three other agents of the defendant made affidavits on behalf of the plaintiff that they were in court at the time of the receivership hearing and did not hear Mr. Lamb make any such statement, but counsel for plaintiff admitted in his affidavit made in opposition to defendant's motion to set aside the judgment that the attorney for the defendant did make a statement "to the effect that the defendant had not been served with a copy of the summons or complaint." But counsel for plaintiff deposes that he believed counsel for defendant referred to summons and complaint in the claim of M. B. Callahan, another party who was plaintiff in an action pending against defendant and whom counsel for plaintiff represented, but the record does not show that any action was had in the Callahan case on August 6th.

These facts are affirmed by the president, vice president, and secretary of the defendant corporation, and by both M. J. Lamb and H. M. Gullickson, associate attorneys, and the fact that M. J. Lamb made the statement quoted above in open court when the attorney for plaintiff was present, five days before the time had expired in which the defendant might have answered in the action, is practically admitted by counsel for the plaintiff, and which renders the other affidavits filed in opposition to the motion to vacate the judgment as practically without evidentiary value.

Mr Paul B. Bowen, attorney for plaintiff, testified that it was the practice in his office to have a stenographer look after the defaults in actions in which he was an attorney. The deputy sheriff who served the summons and complaint on the defendant testified that the summons on which return was made was mailed to Bowen, counsel for the plaintiff, on July 23d...