Mortgage Co. Holland America v. Yost

• Decision Date: 30 July 1924
• Citation: 39 Idaho 489,228 P. 282
• Parties: MORTGAGE COMPANY HOLLAND AMERICA, Respondent and Cross-appellant, v. JOHN F. YOST, LEONARD J. YOST and HERBERT K. YOST, Appellants and Cross-respondent
• Court: Idaho Supreme Court

228 P. 282

39 Idaho 489

MORTGAGE COMPANY HOLLAND AMERICA, Respondent and Cross-appellant, v. JOHN F. YOST, LEONARD J. YOST and HERBERT K. YOST, Appellants and Cross-respondent

Supreme Court of Idaho

July 30, 1924

JUDGMENT-DEFAULT-SETTING ASIDE AND VACATING-DISCRETION OF COURT.

1. An application to set aside a default and vacate a judgment is addressed to the sound legal discretion of the trial court and unless it appears that such discretion has been abused the order will not be disturbed on appeal.

2. Motions to set aside default and vacate judgment and showing in support thereof examined. Discretion of court in making orders complained of held not abused.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Appeal from order refusing to set aside default and vacate judgment as to defendants John F. Yost and Leonard J. Yost. Cross-appeal from order vacating and setting aside judgment as to defendant Herbert K. Yost. Affirmed.

Judgment affirmed. No costs allowed.

J. H Forney and Guy W. Wolfe, for Appellants and Cross-respondent.

In the furtherance of justice a court may set aside a judgment and is not bound by statutory grounds only. (C. S., sec. 6726; Daly v. Okamura (Ariz.), 213 P. 389.)

The facts asserted by these defendants, and upon which their motion is based, are not controverted, in a single instance by the counter-affidavits on the part of the plaintiff. Therefore it was incumbent upon the lower court in ruling upon the motion to decide merely whether or not the defendants had made sufficient showing as to their failure to answer by reason of "mistake, inadvertence, surprise and excusable neglect," and if so, do defendants plead a meritorious defense to the complaint. (Leonard v. Brady, 27 Idaho 78, 147 P. 284; Beck v. Lavin, 15 Idaho 369, 97 P. 1028; Jaerns v. Nicca, 75 Iowa 705, 38 N.W. 129.)

"It is the policy of the law that causes should be tried upon the merits, and the provisions of the law should be liberally construed to that end." (Sanford v. Potter, 32 S.D. 182, 142 N.W. 469; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; British & Am. Mtg. Co. v. Strait, 84 S.C. 131, 65 S.E. 1038; Greene v. Montana Brewing Co., 32 Mont. 102, 79 P. 693.)

C. J. Orland, for Respondent and Cross-appellant.

A motion to set aside a default judgment is addressed to the sound legal discretion of the court, and such discretion must be shown to have been abused or an appellate court will not interfere with the order of the lower court. (Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman & Co. v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan & Sav. Co. v. Smith, 12 Idaho 94, 85 P. 1084; Harr v. Kight, 18 Idaho 53, 108 P. 539; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65; Richards v. Richards, 24 Idaho 87, 132 P. 576; Domer v. Stone, 27 Idaho 279, 149 P. 505; Green v. Craney, 32 Idaho 339, 182 P. 852.)

Upon an application to set aside and vacate a judgment upon the grounds of surprise, inadvertence, mistake or excusable neglect, the applicant must show that he has exercised due diligence in the protection of his rights. (Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7; Forest v. Appleget (Okl.), 154 P. 1129; Gooden v. Lewis, 101 Kan. 482, 167 P. 1133; Westbrook v. Rice, 28 N.D. 324, 148 N.W. 827.)

The failure of the defendants to appear and answer, according to their affidavits, was not occasioned by surprise, inadvertence or excusable neglect, and a mistake of law, if any there be, is not sufficient to set aside a default decree or judgment. (State v. American Surety Co. of New York, 26 Idaho 652, 145 P. 1097; Mantle v. Casey, 31 Mont. 408, 78 P. 594; Willoburn Ranch Co. v. Yegen, 45 Mont. 254, 122 P. 915.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., and Johnson, District Judge, concur. Wm. E. Lee, J., took no part.

OPINION

BUDGE, J.

On August 26, 1912, Kathryn A. Yost and John F. Yost, her husband, made, executed and delivered to Dr. Joh Havelaar their promissory note for $ 1,000 due on August 26, 1915, and at the same time, to secure the payment thereof, made, executed and delivered a real estate mortgage covering certain real property standing in the name of Kathryn A. Yost, situated in the city of Moscow, Latah county, which mortgage was duly recorded in Latah county. The note and mortgage were subsequently assigned to respondent and cross-appellant. On October 3, 1920, Kathryn A. Yost died intestate, leaving surviving her her husband, John F. Yost, and two sons, Herbert K. Yost and Leonard J. Yost. On November 18, 1920, John F. Yost filed an application in the probate court of Latah county, asking that he be appointed administrator of the estate of his deceased wife and letters of administration were thereafter issued to him. Subsequently probate proceedings were had and decree of distribution was made and entered by the probate court on July 27, 1921, wherein and whereby the real property of the estate was distributed in toto to John F. Yost, apparently upon the assumption that the same was community property and not the separate property of the deceased wife. On March 4, 1922, an action was commenced by respondent and cross-appellant to foreclose its mortgage, appellants and cross-respondent being made parties defendant. Service of summons was duly had upon John F. Yost and Leonard J. Yost and upon their failure to appear and answer within the statutory time, on June 28, 1922, their default was entered. On or about June 27, 1922, summons was served upon Herbert K. Yost, a minor, and on June 28, 1922, upon application of respondent and cross-appellant, G. G. Pickett, Esq., was appointed guardian ad litem for such minor. On the same day Pickett, as such guardian ad litem, filed an answer to the complaint denying each and every material allegation thereof but made no appearance at the trial and introduced no evidence on behalf of said minor. Decree of foreclosure was entered on June 28, 1922, and the property was sold by the sheriff of Latah county on August 4, 1922, respondent and cross-appellant becoming the purchaser at foreclosure sale. On October 7, 1922, John F. Yost and Leonard J. Yost served and filed a motion to set aside their defaults and vacate the judgment, which motion was supported by affidavits and also based upon the records and files in the case. Upon a hearing had, the trial court denied the motion. On October 7, 1922, a motion was made by Herbert K. Yost, by and through his guardian ad litem to vacate and set aside the judgment, such motion being supported by the affidavit of the guardian and the ward. This motion was sustained by the court and an order was made vacating the judgment as to the minor and permitting his answer to be filed. From the order entered denying the motion of John F. Yost and Leonard J. Yost appellants and cross-respondents appeal. From the order sustaining the motion of Herbert K. Yost, respondent and cross-appellant appeals.

This proceeding is brought under the provisions of C. S., sec. 6726, which provides, among other things, that:

". . . . The court may likewise, in its discretion, after notice to the adverse party . . . . relieve a party, or his legal representative, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; . . . . "

The rule is well...