Morrell Hardware Co. v. Princess Gold-Mining Co.
| Decision Date | 14 January 1901 |
| Citation | 16 Colo.App. 54,63 P. 807 |
| Parties | MORRELL HARDWARE CO. v. PRINCESS GOLD-MIN. CO. [1] |
| Court | Colorado Court of Appeals |
Appeal from district court, El Paso county.
Action by the Morrell Hardware Company against the Princess Gold-Mining Company to enforce a mechanic's lien. From an order setting aside a default judgment in favor of the plaintiff, he appeals. Affirmed.
Henry Trowbridge, for appellant.
Gunnell & Hamlin, for appellee.
The appellant brought this suit to enforce an alleged mechanic's lien against mining property of the Princess Gold-Mining Company. The complaint averred the sale by the plaintiff to certain persons who were working the property under a lease and option to purchase, executed to them by the mining company, of materials and articles necessary in mining operations, all of which were purchased to be used and were used by those persons in and about the property. The lessees and the Princess Gold-Mining Company were made defendants. Default was made by all the defendants, and judgment was entered as prayed in the complaint. The date of entry of the judgment was July 26, 1897. On the 3d day of September, 1897,--that being the last day of the May term of the court, 1897,--the Princess Gold-Mining Company filed its motion in the cause to vacate the judgment and for leave to file its answer, for the reason, as alleged in an affidavit made in support of the motion, that it had intrusted one of its co-defendants with the filing of its answer together with theirs; and that, relying upon his agreement so to do, it had given no further attention to the case, and did not know that its answer had not been filed until after the rendition of the judgment. The court denied the motion. The Princess Company prayed and was allowed an appeal from the ruling, and upon its filing its appeal bond an execution which had been issued was recalled. Afterwards on the 8th day of November, 1897, the Princess Company applied to the court to set aside its order denying the motion to vacate the judgment, and to rehear the motion, and permit the company to answer. The application was allowed the order vacated, the default set aside, five days given the company for answer, and ten days after receiving a copy for the plaintiff to reply. The answer denied that the lessees by the terms of their lease or their option, had any right, power, or authority to charge against the property of the company any indebtedness of any kind contracted by them. The answer required no replication. On motion of the company the court entered judgment in its favor on the pleadings. The plaintiff has appealed to this court.
The motion to vacate the judgment was filed on the last day of the term, but notice of its filing was not given to the plaintiff until after the commencement of the next term. Until the notice was given, there was no motion, so that this motion was a motion of the term following the judgment. For the plaintiff it is contended that the court was without power to open the judgment after the lapse of the term at which it was rendered, and that hence its action in undertaking to vacate it was nugatory. If there is no statute applicable to the case authorizing applications like this notwithstanding the expiration of the term we must concede counsel's position. But section 75 of the Code provides that the court may, upon affidavit showing good cause therefor, after notice to the adverse party, relieve a party from a judgment taken against him through mistake, inadvertence, surprise, or excusable neglect; and that when, for any cause satisfactory to the court, or the judge at chambers, the party has been unable to apply for the relief sought during the term at which the judgment was taken, the court or judge at chambers may grant the relief upon application made within six months after the adjournment of the term. Now, this motion to vacate the judgment for the reasons set forth in the affidavit was an application to relieve the Princess Company from a judgment taken against it through its alleged mistake, inadvertence, or excusable neglect. The application, so far as its form was concerned, was in conformity with the Code provision. Whether the affidavit showed good cause for the relief asked, and whether it was filed in time, are questions we shall look into further on. Certain terms employed in an act of the legislature, approved April 13, 1895, and purporting to amend the mechanic's lien law then existing, gave rise to a supposition that the purpose of the act was to create a...
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