Occidental Life Ins. Co. v. Niendorf

• Decision Date: 03 May 1935
• Docket Number: 6210
• Citation: 44 P.2d 1099,55 Idaho 521
• Parties: OCCIDENTAL LIFE INSURANCE CO., a Corporation, Respondent, v. L. J. NIENDORF and EFFIE NIENDORF, His Wife, Appellants
• Court: Idaho Supreme Court

44 P.2d 1099

55 Idaho 521

OCCIDENTAL LIFE INSURANCE CO., a Corporation, Respondent, v. L. J. NIENDORF and EFFIE NIENDORF, His Wife, Appellants

No. 6210

Supreme Court of Idaho

May 3, 1935

JUDGMENT-DEFAULT SETTING ASIDE OF-MOTION OF PLAINTIFF-AFFIDAVIT, SUFFICIENCY OF-NOTICE OF MOTION-POWER OF COURT TO VACATE JUDGMENT-VACATION OF VOID PART OF JUDGMENT.

1. Affidavit that plaintiff, by oversight and inadvertence, did not seek in complaint all relief to which it was entitled held insufficient to invoke court's discretion to vacate default and judgment for plaintiff on latter's motion such affidavit not excusing oversight and inadvertence, nor showing what other facts might have been alleged and other relief granted had such facts been pleaded or whether additional relief sought might be claimed in particular action (I. C. A., sec. 5-905).

2. Affidavit supporting motion, whether by plaintiff or defendant, to set aside default and judgment thereon for plaintiff on ground of oversight and inadvertence must state facts and circumstances claimed to constitute such oversight and inadvertence (I. C. A., sec. 5-905).

3. Ex parte order, vacating default and judgment thereon for plaintiff on latter's motion for oversight and inadvertence in not seeking all relief to which plaintiff was entitled held erroneous, defendant being entitled to service of notice of motion (I. C. A., sec. 5-905).

4. Statute, providing that service of notice need not be made on defendant not appearing after default, does not relieve plaintiff, seeking order vacating default and judgment for plaintiff thereon because of oversight and inadvertence in not seeking all relief to which plaintiff was entitled, from serving notice of motion on defendants; order granting such relief being appealable (I. C. A., secs. 5-905, 11-201, 12-504).

5. Courts of record have inherent power to vacate their judgments, void on face of judgment-rolls, on their own or party's motion at any time.

6. Default mortgage foreclosure judgment within issues tendered by complaint in usual form and sufficient on its face to sustain judgment and rendered by court having jurisdiction of subject matter and defendants and power to render such judgment held not void on its face, as required to authorize vacation thereof by court after term time.

7. Invalidity of part of mortgage foreclosure judgment directing clerk to enter deficiency judgment for balance of mortgage debt after applying proceeds from sale of mortgaged property to payment thereof, held not to affect or invalidate whole judgment.

8. Void portion of judgment will be vacated, if separable from balance thereof, and such balance permitted to stand.

9. Statutory method of exercising common-law power of court to modify, alter or vacate its judgments at any time during term in which entered is exclusive.

10. Showing of facts and circumstances constituting oversight and inadvertence, alleged as ground for vacation of default and judgment thereon, cannot be dispensed with because not required at common law (I. C. A., sec. 5-905).

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Action to foreclose real estate mortgage. Judgment for plaintiff. Default and judgment vacated on motion of plaintiff. Defendants appeal from order. Reversed and remanded.

Reversed and remanded with directions. Costs awarded to appellants.

Ralph Litton, for Appellants.

An affidavit in support of a motion to vacate a judgment must set forth facts from which the court can exercise its discretion. (Savage v. Stokes, 54 Idaho 109, 28 P.2d 900; 15 R. C. L. 718.)

That said affidavit is defective and insufficient in that it does not state that affiant is familiar with the facts of said case or that respondent has acted diligently and that such inadvertence and oversight are excusable. (Section 5-905, I. C. A.; 15 R. C. L. 718; Gill v. Peppin, 41 Cal.App. 487, 182 P. 815.)

F. L. Soule, for Respondent.

As to the cause for which a judgment may be set aside: Under this power of the court to act, independent of the statute, during the term, judgments may be set aside for any of many matters termed mere "irregularities," as distinguished from void judgments. Any cause which will relieve injustice, appeal to the conscience of the court and move the court's discretion is sufficient under this general power. (15 R. C. L. 688, and p. 703, n. 16; Volland v. Wilcox, 17 Neb. 46, 22 N.W. 71; 1 Black on Judgments, sec. 326.)

As to the sufficiency of the application and notice thereof, neither was necessary where the application is made during the same term, or where the judgment is void. A mere suggestion is all that is necessary; the court may not on its own motion and without notice. We are not dealing with courtesy nor propriety but with the question of the power of the court. (Wabash Ry. Co. v. City of Gary, 191 Ind. 394, 132 N.E. 737; Durre v. Brown, 7 Ind.App. 127, 34 N.E. 577; Henderson v. Dreyfus, 26 N.M. 262, 191 P. 455; Netusil v. Novak, 120 Neb. 751, 235 N.W. 335; Banegas v. Brachet, 99 Cal. 623, 34 P. 344.)

AILSHIE, J. Givens, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

This is an action to foreclose a real estate mortgage. Complaint was filed and summons issued; personal service was had upon each of appellants. Appellants having failed to enter an appearance within the time allowed, default was regularly entered by the court and judgment of foreclosure was rendered as prayed for in complaint. Writ of execution was issued pursuant to judgment and order of sale but was never served,--the property was not sold under it and execution was withdrawn and returned by the sheriff who reported no sale made. About one month subsequent to entry of judgment motion was filed by plaintiff's attorney to set aside and vacate the default and judgment and to reinstate the cause to its status prior to the entry of the default and judgment; neither the motion nor notice thereof was served. Thereafter the lower court made an ex parte order granting the motion and vacating the default and judgment.

On June 12, 1934, counsel for appellants filed a motion to vacate and annul the order vacating the default and judgment; this motion was argued, submitted and taken under advisement by the court. August 29, 1934, the court entered its order denying the motion, to which ruling the appellants excepted. This appeal is from the order vacating, annulling and setting aside the default and judgment and from the order denying and overruling appellants' motion to vacate and annul the order setting aside, annulling and vacating said default and judgment.

Two assignments of error are made by counsel for appellants: First: "That the court erred in making and entering its order granting respondent's motion to vacate the default and judgment for the following reasons:"

(a) That the affidavit upon which said motion is based is insufficient to support said order, as it does not state facts upon which the court can exercise its discretion.

(b) That said default and judgment could not be vacated without notice to appellants (no service on appellants of motion to vacate default and judgment).

(c) That the affidavit made by counsel for respondent is defective in that it does not state that he is familiar with the facts of the case and believes that respondent has good and sufficient cause for vacating said default and judgment, etc.

The second assignment is against the order of the court denying the appellants' motion to vacate the ex parte order setting aside the judgment and raises the same questions involved in the first assignment.

The grounds other than formal matters stated in the affidavit by plaintiff's attorney for setting aside the default and judgment are as follows: "That by oversight and inadvertence of the plaintiff, this plaintiff has not sought, and did not in its complaint seek all the relief to which it was entitled and desires that said default and judgment be set aside and vacated in order that such relief may be sought in these proceedings." This affidavit was insufficient to invoke or call into action the discretion of the court so as to enable it to vacate its judgment previously entered. In an affidavit to set aside a judgment or default it is not sufficient to merely state that the judgment or order which it is sought to vacate was taken "by oversight and inadvertence," but must state the facts and circumstances which it is claimed constitute the oversight and inadvertence in order to set in action the judgment and discretion of the court, who must eventually determine whether or not there was such an "oversight" or "inadvertence" as is contemplated by the statute in order to justify entering the order sought. Such has been the uniform holding of this court throughout a long period of years. (Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Pease v. County of Kootenai, 7 Idaho 731, 65 P. 432; Western Loan etc. Co. v. Smith, 12 Idaho 94, 85 P. 1084; In re Pittock's Estate, 15 Idaho 47, 96 P. 212; Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65; Hall v. Whittier, 20 Idaho 120, 126, 116 P. 1031; Day v. Burnett, 38 Idaho 620, 224 P. 427, 429; Ward v. Burley State Bank, 38 Idaho 764, 225 P. 497, 498; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900.)

In Hall v. Whittier, supra, this court said:

"Counsel did not set forth any of the facts which constituted the inadvertence or mistake. It has been repeatedly held by this court in all matters of this kind that the facts must be presented to the court upon which the party relies to bring himself within the purview of the statute. . . . he must set up those facts and...