McDaniel v. Hoblit

• Decision Date: 20 April 1926
• Docket Number: 1260
• Citation: 245 P. 295,34 Wyo. 509
• Parties: McDANIEL v. HOBLIT [*]
• Court: Wyoming Supreme Court

245 P. 295

34 Wyo. 509

McDANIEL v. HOBLIT ^[*]

No. 1260

Supreme Court of Wyoming

April 20, 1926

APPEAL from District Court, Crook County; HARRY P. ILSLEY, Judge.

Action by George McDaniel against J. T. Hoblit and others. A default judgment was entered against defendants, and they moved for its vacation. From an order denying their motion, defendants appeal.

Reversed and Remanded.

R. E McNally, and Wakeman and Dolezal, for appellants.

The court erred in refusing to vacate the default judgment; 15 R C. L. 688; Bank v. Branden, (N. D.) 126 N.W. 102; the default was due to negligence of defendant's counsel the court's refusal to vacate the default was unjust and an abuse of discretion; Douglas v. State Mine (Wash.) 83 P. 178; O'Toole v. Insurance Co., (Wash.) 82 P. 175; Trust Co. v. Jennings, (Ia.) 46 N.W. 1006; Harbers v. Tribley, 5 Ill.App. 411; Field v. Fowler, 62 Tex. 65; the affidavits in support of motion to vacate established facts upon which the motion should have been sustained; Berri v. Rogero, (Calif.) 145 P. 95; Petersen v. Koch, 81 N.W. 160; State v. Taylor, (Mo.) 206 S.W. 247; Shapiro v. Cordon, 170 N.Y.S. 371; Taylor v. Pope, (N. C.) 19 A. S. R. 530; McGinnis v. Bailey, (Wyo.) 204 P. 340; Banse v. Wells, 186 P. 192; Grandy v. Co., 95 S.E. 914; appellants should not be made the victims of the inexcusable neglect and failure of defendant's counsel. The cause should be remanded with instructions to vacate and set aside the judgment and give defendants an opportunity to join issue and try the cause on its merits.

James T. McGuckin, for respondent.

The case, strictly speaking, is not a "default" case; the issues were made up and the case was regularly on the trial docket upon an assignment for hearing; defendant's filed a motion to quash, which was overruled and thereupon filed their answer. They were represented by two attorneys, one of whom has since withdrawn from the case; on the day assigned for trial, plaintiff appeared with his witnesses and appellants failed to appear; the case proceeded and judgment was rendered; in reliance upon that judgment, plaintiff foreclosed his chattel mortgage and sold the property; appellants made no further move until January, 1924 when they filed their motion to vacate the judgment, which was overruled, and from that order they appeal; the motion did not show a meritorious defense; yet that is clearly required; McGinnis v. Beatty, (Wyo.) 204 P. 340; Tracy v. Fancher, 159 P. 496; they do not attempt to deny plaintiff's right to possession; if they had a counterclaim at the time of the motion, they have not urged it since; the vacation of a judgment is within the discretion of the trial court; upon the facts, it would have been an abuse of discretion if the motion to vacate had been sustained; Shearman v. Jorgensen, (Calif.) 39 P. 863; relying upon the judgment, plaintiff has changed his position so that the status quo cannot be restored; Savage v. Dinkler, 72 P. 366; acts and knowledge of the attorney are imputed to the client; Bigsby v. Eppstein, 135 P. 934; a party to litigation is bound to know the day fixed for setting cases for trial; Dusy v. Prudon, (Calif.) 30 P. 798; Oil Co. v. Conner, 162 P. 464; Stout v. Calver, 6 Mo. 254; the trial court was in position to know what the equities of the situation were, and made an express finding that there was no good reason to vacate the judgment; we submit that the denial of motion to vacate was not an abuse of discretion.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a replevin action. The property is machinery and implements used in plowing. The plaintiff's interest was under a chattel mortgage to him as mortgagee from the defendants as mortgagors. The debt secured by the mortgage was $ 1500, evidenced by two notes for $ 750 each, one due December 1, 1923, and the other due December 1, 1924. The plaintiff's right to possession of the property, if he had that right, was for the purpose of foreclosing the mortgage. The petition and affidavit for replevin were filed, and the summons and writ of replevin (order for delivery) issued, on June 4, 1923, before either of the notes was due. The plaintiff in his petition claimed that the debt was due because the defendants, after the making of the notes and mortgage, had agreed that the notes should be paid in the spring of 1923 by plowing lands for the plaintiff, and that defendants had failed to keep that agreement. The plaintiff in his petition claimed further that the property was being handled so negligently by defendants that plaintiff felt unsafe and insecure, and, for that reason, was entitled to take the property under the mortgage and sell it to satisfy the debt. The prayer of the petition was for judgment for possession of the property and for $ 1000 "for the unlawful detention thereof," and costs.

The property was taken by the sheriff under the writ of replevin, and turned over to plaintiff on his giving bond. The defendants gave no bond for re-delivery, and the property was retained by plaintiff.

On August 11, 1923, defendants' motion to quash the summons and writ of replevin was denied and defendants given ten days to answer. In the time given the answer, a general denial, was filed.

Judgment in favor of plaintiff was entered October 1, 1923, the first day of the October term of the court in which the action was pending. The judgment recites, among other things, that the matter came on regularly to be heard on the day last mentioned, one of the days of said term, "the plaintiff appearing in person and by his attorney, but the defendants, and each of them failing to appear although said above action was regularly reached and called at this term of court, the issues having theretofore been fully made up, and said defendants failing to appear after being thrice called in open court, they are hereby declared to be in default herein and their default is hereby entered." The judgment then recites that the court after inspecting the pleadings and hearing the evidence of plaintiff and his witnesses, finds generally in favor of the plaintiff; that at the commencement of the action, plaintiff was entitled to possession of the property which defendants unlawfully detained, and that "the value of the use of said property for the period the said property was so wrongfully detained by the defendants from the plaintiff was the sum of $ 500." In accordance with the findings plaintiff was awarded judgment for possession, $ 500 damages, and costs.

On January 8, 1924, at the same term at which the judgment was rendered, the defendants filed a motion with supporting affidavits for vacation of the judgment. After notice to plaintiff the motion was heard without any showing by plaintiff to controvert the statements contained in the affidavits, and on May 8, 1924, an order was made denying the motion. From that order the defendants appeal.

From the affidavits filed by defendants in support of their motion it appears that they had always intended to defend the action. They reside at Gillette, 80 miles from Sundance, the county seat of the county where the suit was pending. They employed Mr. R. E. McNally, of Sheridan, as their attorney. Sheridan is some 200 miles from Sundance. Later, it being deemed advisable to have an attorney of Crook county to assist Mr. McNally, Mr. W. C. Carson, of Moorcroft, was employed for that purpose. Mr. Carson filed the motion to quash and the answer to which we have referred, but he was not present when judgment was rendered. It is charged that he failed to notify either Mr. McNally or defendants that the motion was overruled, or that an answer had been filed, or that the case was set for trial, or that judgment was entered. The foregoing is but a brief summary of the charges against Mr. Carson that are set forth in great detail in the affidavits. Other matters set forth in the motion and affidavits need not be noticed at this point and some of them need not be noticed at all.

The defendants do not give any excuse for the negligence charged against Mr. Carson, but on the other hand, assert that it was inexcusable and amounted to positive misconduct or, perhaps fraud. Needless to say Mr. Carson did not represent the defendants in moving to vacate the judgment, and it does not appear that he has had any opportunity to deny or explain the charges made against him. Mr....