Miller v. Brinkman

• Decision Date: 07 October 1929
• Docket Number: 5272
• Parties: GEORGE W. MILLER and JEAN MILLER, Appellants, v. FRANK BRINKMAN, Respondent
• Court: Idaho Supreme Court

281 P. 372

48 Idaho 232

GEORGE W. MILLER and JEAN MILLER, Appellants, v. FRANK BRINKMAN, Respondent

No. 5272

Supreme Court of Idaho

October 7, 1929

DEFAULT JUDGMENT - VACATION OF - DEFAULT DUE TO FAILURE OF ATTORNEY-SHOWING REQUIRED.

1. Setting aside of default judgment held not error under C. S sec. 6726, as amended by Laws 1921, chap. 235, where attorney failed to appear and answer for defendant within time provided, although defendant had engaged attorney in plenty of time; defendant in such case being "otherwise without default," regardless of whether he personally engaged attorney, since he may do so through another.

2. Party moving to have default judgment set aside ought to accompany his motion with proposed answer, or, in addition to grounds on which motion is based, set forth facts constituting defense.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Action for damages. Appeal from an order setting aside default judgment. Affirmed.

Order affirmed. Costs to respondent.

B. H Miller, for Appellants.

A motion to set aside a clerk's default and vacate a judgment is addressed to the "sound legal discretion of the trial court. Such a motion cannot be granted ex gratia."

If the trial court abused a "sound legal discretion" it will be reversed on appeal.

In this case the only question involved is, Did the trial court abuse a "sound legal discretion" in granting the motion to set aside the default and vacate the judgment? (Dormer v. Stone, 27 Idaho 279, 149 P. 505; Valley State Bank v. Post Falls Land Co., 29 Idaho 587, 161 P. 242; Armstrong v. Hartford Fire Ins. Co., 33 Idaho 303 195 P. 301; Ticknor v. McGinnis, 33 Idaho 308, 193 P. 850; Nelson v. McGoldrick Lbr. Co., 30 Idaho 451 165 P. 1125; Atwood v. Northern P. Ry. Co., 37 Idaho 554, 217 P. 600.)

Ralph L. Albaugh, for Respondent.

It was the intention of the legislature to relieve a party litigant from default, where such default had been taken through mistake, negligence or oversight of his attorney, and such mistake, negligence or failure is a statutory ground for relief. (Sess. Laws 1921, chap. 235, p. 526; Weaver v. Rambow, 37 Idaho 645, 217 P. 610; Brainard v. Coeur d'Alene Antimony Min. Co., 35 Idaho 742, 208 P. 855; Consolidated Wagon & Mach. Co. v. Housman, 38 Idaho 343, 221 P. 143, 144.)

Where a default was due to the neglect and failure of the attorney, a showing that the defendant has a meritorious defense is not necessary, and it is not necessary to present an affidavit of merits or proffer an answer. (Consolidated Wagon & Mach. Co. v. Housman, supra; Weaver v. Rambow, supra.)

WM. E. LEE, J. T. Bailey Lee and Varian, JJ., concur, Budge, C. J., and Givens, J., concur in the conclusion.

OPINION

WM. E. LEE, J.

For the failure of respondent Brinkman to appear or answer a complaint served on him within the time specified in the summons, a default judgment was entered against him. On Brinkman's motion, the court set aside the default and vacated the judgment. The action was to recover for personal and property injuries and was against the respondent and the General Casualty Company of America. A few days after the entry of the default against Brinkman, the action was dismissed as to the Casualty Company, which had appeared.

It appears that attorney Albaugh appeared for the other defendant and wrote to Brinkman about representing him in the action. Brinkman had not yet been served and did not then reply. When summons was thereafter served on Brinkman he wrote one Upham, the agent of his co-defendant, and asked him to arrange to have Albaugh represent him (Brinkman). Upham arranged with Albaugh, and Albaugh agreed with Upham, to represent Brinkman. Upham then delivered to Albaugh the copy of the summons and complaint served on Brinkman. Albaugh then had several days within which to file an appearance, but neglected to do so, and the default was entered.

The statute, C. S., sec. 6726, amended, chap. 235, Laws of 1921, provides that: "Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, the court . . . . shall . . . . set aside such judgment. . . . " It is too plain for argument that this 1921 amendment makes it the duty of the court to set aside a default entered against a defendant for the failure of his attorney to appear and answer within the time provided therefor. (Consolidated Wagon & Mach. Co. v. Housman, 38 Idaho 343, 221 P. 143. See, also, Weaver v. Rambow, 37 Idaho 645, 217 P. 610; Brainard v. Coeur d'Alene A. Min. Co., 35 Idaho 742, 208 P. 855; Day v. Burnett, 38 Idaho 620, 224 P. 427.)

It is claimed, however, that Brinkman had not engaged an attorney and was not, therefore, "otherwise without default." It is set forth in the affidavits of Brinkman, Albaugh and Upham that Albaugh was Brinkman's attorney, and that he had been engaged in plenty of time to file an appearance for Brinkman. Having engaged Albaugh to represent him, Brinkman was, therefore, "otherwise without default." (Brainard v. Coeur d'Alene A. Min. Co., ...