Nelson v. McGoldrick Lumber Co.

• Decision Date: 13 June 1917
• Citation: 30 Idaho 451,165 P. 1125
• Parties: J. P. NELSON, Respondent, v. MCGOLDRICK LUMBER COMPANY, Appellant
• Court: Idaho Supreme Court

165 P. 1125

30 Idaho 451

J. P. NELSON, Respondent, v. MCGOLDRICK LUMBER COMPANY, Appellant

Supreme Court of Idaho

June 13, 1917

DEFAULT-MOTION TO VACATE-SUFFICIENCY OF SHOWING-APPEAL FOR DELAY-DAMAGES.

1. Where it clearly appears that a default was permitted to be entered through the carelessness and negligence of a party or his counsel, for which no reasonable excuse is offered, it will not be vacated upon the theory that it was taken against him through his mistake, inadvertence, surprise or excusable neglect.

2. Under rule 44 of the rules of practice in this court, damages may be allowed to respondent in an amount not to exceed twelve per cent of the judgment, where it manifestly appears the appeal has been taken for delay.

[As to vacating of judgments on account of negligence or mistake of attorney, see note in 96 Am.St. 108]

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

Action to recover for labor performed and services rendered in cutting and hauling certain cedar poles. Default for failure to answer was entered and from a judgment in favor of plaintiff and an order denying a motion to vacate the default, defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Cullen Lee & Matthews, and Featherstone & Fox, for Appellant.

Statutes relating to the vacating of default judgments should receive a most liberal construction. (6 Ency. Pl. & Pr., 154; Walsh v. Boyle, 94 Minn. 437, 103 N.W. 506; Lemon v. Hubbard, 10 Cal.App. 471, 102 P. 554; Hull v. Vining, 17 Wash. 352, 49 P. 537.)

A default was set aside by this court in the following cases Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Estate of Pittock, 15 Idaho 47, 96 P. 212; Shumake v. Shumake, 17 Idaho 649, 107 P. 42; Parsons v. Wrble, 19 Idaho 619, 115 P. 8.

Every reasonable doubt in such cases will be resolved in favor of a trial upon the merits. (Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S. , 817; Coleman v. Security Savings Soc., 57 Wash. 675, 107 P. 842; Reitmeir v. Siegmund, 13 Wash. 624, 43 P. 878; Hermance v. Cunningham, 49 Neb. 897, 69 N.W. 311; Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 36 Am. St. 761, 47 N.W. 955; Horton v. New Pass Gold & Silver Min. Co., 21 Nev. 184, 27 P. 376, 1018; Howe v. Coldren, 4 Nev. 171; Rosebud Lumber Co. v. Serr, 22 S.D. 389, 117 N.W. 1042; Ordway v. Suchard, 31 Iowa 481.)

Wm. D. Keeton and E. N. La Veine, for Respondent.

The laches and delays in this case do not constitute any mistake, surprise, inadvertence or any neglect which can be excused. Neglect to be in a position to answer seventy-six days after the defendant had been served with summons and complaint does not come within neglect which should be excused by a court, nor does it show diligence on the part of appellant. The appellant does not show that it made any mistake, or that it was surprised. It was not misled or deceived in any way. (Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89.)

There is no press of business shown which is excusable, and no excuse for the laches in this case is presented by the showing of the appellant. (Bailey v. Taaffe, 29 Cal. 422, 423; Bowen v. Webb, 34 Mont. 61, 85 P. 739; Scilley v. Babcock, 39 Mont. 536, 104 P. 677; Lovell v. Willis, 46 Mont. 581, Ann. Cas. 1914B, 587, 129 P. 1052, 43 L. R. A., N. S., 930; Brumbaugh v. Stockman, 83 Ind. 583; Church v. Lacy, 102 Iowa 235, 71 N.W. 338; Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

There is no justice in permitting one party to obtain an undue or unfair advantage through neglect or mistake of the other's attorney. (Jones v. Vane, 11 Idaho 353, 363, 82 P. 110.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This action was commenced on September 10, 1915. On October 7th, appellant filed a demurrer to the complaint, which was overruled on November 1st, and appellant was given twenty days in which to answer. By stipulation the time was extended to and including November 27th, and on December 2d, no answer having been filed, the default of appellant was entered. On December 15th, no other or further appearance having been made, respondent offered proof in support of the allegations of his complaint and was awarded judgment in the sum of $ 523.43 and costs.

On January 19, 1916, appellant caused to be served upon counsel for respondent a motion and notice of motion to vacate the default and for permission to answer, together with an affidavit in support thereof, and a proposed answer to the complaint. These papers were filed on January 31st, at which time the motion was heard and denied. This appeal is from the judgment and from the order denying the motion.

The assignments of error bring before us for review the showings made in support of and in opposition to the motion above mentioned and the action of the trial court thereon.

It appears from the affidavit of W. J. Matthews, of counsel for appellant, that it was necessary, in order to ascertain the facts from which to prepare an answer, to confer with J. F Armfield, appellant's codefendant; that some difficulty was encountered in locating Armfield, and that on November 13th, it was found he was in Pullman, Washington; that, although affiant communicated with him, both by telephone and letter, and offered to pay all expenses of the trip if he would go to Spokane, Washington, where affiant resided, in order to confer with counsel for appellant relative to the facts in the case, he declined to do so, and it was not until on or about November 29th that appellant received a letter from him purporting to give the necessary information, and that...