Nuestel v. Spokane International Ry. Co.

• Decision Date: 25 May 1915
• Citation: 27 Idaho 367,149 P. 462
• Parties: WILLIAM NUESTEL, Respondent, v. SPOKANE INTERNATIONAL RAILWAY CO., a Corporation, Appellant
• Court: Idaho Supreme Court

149 P. 462

27 Idaho 367

WILLIAM NUESTEL, Respondent, v. SPOKANE INTERNATIONAL RAILWAY CO., a Corporation, Appellant

Supreme Court of Idaho

May 25, 1915

DEFAULT-JUDGES-POWER OF AT CHAMBERS-TESTIMONY-JUDGMENT-ENTRY OF-NOTICE OF TO DEFENDANT-DISCRETION OF JUDGE.

1. Where a default has been entered in a case where unliquidated damages are claimed, under the provisions of subd. 17 of sec 3890, Rev. Codes, the judge has power and jurisdiction to hear testimony and to enter judgment at chambers, and the judgment so entered has the same force and effect as though entered in open court.

2. Where default has been entered, it is not necessary to give the defendant in default notice that the judge is going to proceed and hear testimony at chambers and enter judgment.

3. An application to set aside a default is addressed to the sound legal discretion of the trial court, and unless it is made to appear that such discretion has been abused, the order made on such application will not be disturbed upon appeal.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to recover damages for the killing of certain animals by the defendant railway company. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

E. R Whitla and Allen & Allen, for Appellant.

All of the proceedings upon which the application to set aside the default and judgment were taken appear in the record. The court heard the case upon affidavits and no oral testimony was introduced; so that this court will hear and determine this question now the same as if the matter had been presented to it in the first instance and will review the court's decision and exercise its own discretion in the matter the same as the trial court is authorized to do in such cases. (Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7.)

By sec. 4360, Rev. Codes, subd. 2, it is contemplated that such cases will remain upon the calendar after the entry of default and be set for hearing at the next term, but in this case the judgment was entered ex parte at chambers without notice to any person whatever. This section of the statute provides for the court hearing cases and entering judgments and not for the judge to do so at chambers. Upon this proposition, we think, the plaintiff could only have the court to enter judgment at a time when the defendant would be present and allow an opportunity to contest the amount of damages. (Parke v. Wardner, 2 Idaho 263, 285, 287, 13 P. 172; Ruth v. Smith, 29 Colo. 154, 68 P. 278; 2 Sutherland on Damages, 3d ed., sec. 429; 6 Ency. Pl. & Pr. 132; Ballard v. Purcell, 1 Nev. 342, 343.)

Even though in default the defendant has a right to question the amount of damages, to cross-examine the witness and to object to incompetent evidence being introduced. (6 Ency. Pl. & Pr. 136-138, and notes; 2 Sutherland on Damages, 3d, ed., sec. 430.)

"After the defendant has appeared in an action he is entitled to notice of the assessment of damages which should always be given." (10 Ency. Pl. & Pr. 1140; Searles v. Lawrence, 8 S.D. 11, 65 N.W. 34.)

"The power of the court should be freely and liberally exercised under the statute, to mold and direct its proceedings, so as to dispose of cases upon their substantial merits." (Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630; O'Brien v. Leach, 139 Cal. 220, 96 Am. St. 105, 72 P. 1004.)

C. H. Potts and Bert A. Reed, for Respondent.

Defendant failed to plead to the amended complaint within the time allowed by law, and upon such failure, judgment by default could be entered, as in other cases. This brought the case within the provisions of sec. 4360, Rev. Codes, the same as though no appearance had ever been made by the defendant. (Hall v. Whittier, 20 Idaho 120-125, 116 P. 1031.)

The defendant was not entitled to any notice of this application, and this was, therefore, not a ground on which to base a motion to vacate the judgment and set aside the default. (Hall v. Whittier, supra.)

"After default a defendant cannot be heard to contest the subsequent proceedings, and certainly it would be a useless thing to require notice of such proceedings to be served upon him." (Norris v. Campbell, 27 Wash. 654, 68 P. 339; Hyde v. Heaton, 43 Wash. 433, 86 P. 664; General Litho. Co. v. American Trust Co., 55 Wash. 401, 104 P. 608.)

"An application to set aside and vacate a judgment is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal." (Culver v. Mountainhome Electric Co., 17 Idaho 669, 107 P. 65; Harr v. Kight, 18 Idaho 53, 108 P. 539; Vollmer Clearwater Co. v. Grunewald, 21 Idaho 777, 124 P. 278; Richards v. Richards, 24 Idaho 87, 132 P. 576; Baker v. Knott, 3 Idaho (Hasb.) 700, 35 P. 172; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Thum v. Pyke, 6 Idaho 359, 55 P. 864; Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan & Savings Co. v. Smith, 12 Idaho 94, 85 P. 1084; Vane v. Jones, 13 Idaho 21, 88 P. 1058; Pittock v. Buck, 15 Idaho 47, 96 P. 212; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89; Humphreys v. Idaho Gold Mines Development Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Brooks v. Orchard Land Co., Ltd., 21 Idaho 212, 121 P. 101; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630.)

Where a defendant suffers a default to be taken against it because of its failure to employ Idaho attorneys to look after its cases pending in the courts of Idaho, it should receive scant consideration. (Manning v. Roanoke etc. R. Co., 122 N.C. 824, 28 S.E. 963; Jett v. Herald, 23 Ky. L. 9, 62 S.W. 264; Union etc. Ins. Co. v. Lipscomb (Tex. Civ.), 27 S.W. 307; Benedict v. Hadlow Co., 52 Fla. 188, 42 So. 239; Bank of Glade Springs v. Palmer, 153 N.C. 501, 69 S.E. 507.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover the alleged value of five cows and three calves, alleged to have been killed by the defendant railway company. The original complaint was filed in said action on the 24th day of October, 1913, and the defendant, who is appellant here, demurred to said complaint. Thereafter on December 30, 1913, and before the court had passed upon said demurrer, the plaintiff filed his amended complaint, which amended complaint was served upon the resident attorney for the railroad.

On the 31st of that month, the resident attorney's term of service with the railroad company expired, and on that day he transmitted a copy of the amended complaint to Messrs. Allen & Allen at Spokane, Washington, inclosing a letter therewith calling said attorneys' attention to said amended complaint and requesting that they attend to the matter as his contract of employment with the railroad company had terminated.

No demurrer or answer was filed to said amended complaint and on January 10, 1914, the time for said defendant to plead to said amended complaint having expired and no pleading having been served or filed, the plaintiff applied to the clerk of the district court for a default against the defendant and default was entered on that day. On the 12th of January, 1914, two days after default had been entered, the plaintiff appeared before the district court and offered evidence in support of the damage claimed by him, and the court heard the evidence and thereupon entered judgment in his favor for the amount prayed for in the complaint, with interest.

It appears that on the 12th of January, 1914, one of the Spokane attorneys wrote a letter to one of the attorneys for the plaintiff requesting an extension of time to February 1st in which to answer said amended complaint, and in response to that letter the attorney replied that a judgment had been entered in the case on the 12th of January which, it seems, was the first intimation the attorneys for appellant had that a default had been entered in said...