Newman v. Cheesman Automobile Co.

• Decision Date: 20 April 1921
• Citation: 197 P. 826,33 Idaho 685
• Parties: S. P. NEWMAN, Respondent, v. CHEESMAN AUTOMOBILE CO., a Corporation, Appellant
• Court: Idaho Supreme Court

197 P. 826

33 Idaho 685

S. P. NEWMAN, Respondent, v. CHEESMAN AUTOMOBILE CO., a Corporation, Appellant

Supreme Court of Idaho

April 20, 1921

SUMMONS-DEFECTIVE SERVICE-ANSWER-DEFAULT JUDGMENT-MOTION TO SET ASIDE.

1. By tendering an answer appellant submits to the jurisdiction of the court and cures defect, if any, in the service of summons and complaint.

2. The action of a trial court in refusing to set aside a judgment by default on account of inadvertence, surprise or excusable neglect will not be disturbed on appeal, unless it appears that there has been an abuse of the discretion vested in such court.

APPEAL from the District Court of the Fourth Judicial District of the State of Idaho, for Lincoln County. Hon. Wm. A. Babcock Judge.

Motion to set aside judgment by default. Motion denied and defendant appeals. Affirmed.

Judgment affirmed. Costs to the respondent.

Walters & Hodgin and Boyd, Devine & Eccles, for Appellant.

Paul S Haddock, for Respondent.

Counsel file no briefs.

DUNN J. Rice, C. J., and Budge, McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

This action was brought by the plaintiff to recover from the defendant the sum of $ 200, paid on the purchase price of a new automobile, and $ 775, the alleged value of a used automobile delivered to the defendant, which was to apply on the purchase price of said new automobile.

Summons and writ of attachment were issued in said action on August 16, 1917, and on the same day levy was made on a Peerless seven-passenger automobile as the property of the defendant. On August 21, 1917, summons was served at Shoshone, Idaho, on W. S. Cheesman, as manager of said Cheesman Automobile Company.

No appearance having been made by said defendant, its default was duly entered and on September 11, 1917, said action came on to be heard in open court at Shoshone, and judgment was entered against the said defendant as prayed for in the complaint.

Execution issued on September 12, 1917, and on September 19th the sheriff of Lincoln county sold the said Peerless seven-passenger automobile under and by virtue of said execution.

On September 28, 1917, the defendant appearing specially, moved the court to quash, vacate and set aside the summons in said cause and the service and return thereof and to dissolve the writ of attachment issued in said cause for the following reasons:

"That the defendant, Cheesman Automobile Company, is a corporation organized and existing under and by virtue of the laws of the state of Utah, and not engaged in transacting business within the state of Idaho, within the purview of the statutes of the said state of Idaho, relating thereto.

"That the nature of this action as disclosed by the complaint is personal in its nature, and does not fall within the sections of the statutes of the state of Idaho authorizing service outside of the state or by publication.

"That said action, as disclosed by the complaint is not one upon a judgment, or upon contract express or implied, within the purview of sections 4302 and 4303, Idaho Revised Codes, and that said attachment was wrongfully issued.

"That by reason of the foregoing this court has acquired no jurisdiction of the defendant."

This motion was not brought on for hearing, but on November 16th, 1917, the defendant filed notice of motion that on December 1, 1917, or as soon thereafter as counsel could be heard, it would move the court to vacate the judgment rendered against the defendant in said cause and set aside the default of the defendant on the following grounds:

"That at the date of entering said default and at the date of rendering said judgment, this court had acquired no jurisdiction of the defendant.

"That said proceedings and all thereof were taken against this defendant through its inadvertence,...