Olson v. Kirkham

• Decision Date: 05 May 1986
• Docket Number: No. 15834,15834
• Citation: 720 P.2d 217,111 Idaho 34
• Parties: Neva OLSON, Plaintiff-Respondent, v. Dale KIRKHAM, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 217

720 P.2d 217

111 Idaho 34

Neva OLSON, Plaintiff-Respondent, v. Dale KIRKHAM, Defendant-Appellant.

No. 15834.

Court of Appeals of Idaho.

May 5, 1986.

Rehearing Denied July 10, 1986.

John B. Kugler, Pocatello, for defendant-appellant.

Steven V. Richert, Pocatello, for plaintiff-respondent.

SWANSTROM, Judge.

Neva Olson brought this action against Dale Kirkham to have the district court declare that she had a one-half interest in a Cessna airplane once jointly owned by Neva's late husband and Kirkham, and to compel the sale of the airplane and division of the proceeds. Nineteen months later, when Kirkham failed to answer, Olson obtained a default judgment entitling her to a one-half interest in the airplane and ordering its sale. Kirkham promptly moved to have the default judgment set aside. The district court denied his motion and Kirkham then appealed. He contends that the district court lacked subject matter jurisdiction, rendering the judgment void. He also asserts that the default judgment should have been vacated because: (1) the court erred by failing to require proof of facts to support the judgment, (2) Kirkham failed to receive notice of the intent to take default and (3) that even if the judgment was valid, the court abused its discretion by not relieving Kirkham from the judgment under provisions of Rule 60(b), I.R.C.P. ¹ For reasons which follow we affirm the judgment.

Kirkham first asserts that the judgment is void because the district court lacked subject matter jurisdiction to determine rights of succession and distribution in probate matters. He contends that before Olson can maintain an independent and direct action asserting any ownership rights in the airplane she must first adjudicate her right of spousal succession through a probate proceeding. ² We find this argument to be without merit.

"The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law." IDAHO CONST. art. 5, § 20. Similar but more specific statutory provisions are contained in I.C. § 1-705. Originally jurisdiction over probate matters vested exclusively in the probate courts under IDAHO CONST. art. 5, § 21. However, as part of the court reorganization of the 1960's, art. 5, § 21 was repealed, the probate courts were eliminated as of January 1971, and the former jurisdiction of the probate courts was transferred to the district courts, including to the magistrate division thereof. I.C. § 1-103.

Kirkham argues that subject matter jurisdiction is vested in the magistrate division exclusively by virtue of I.C. § 15-3-105. ("The court has exclusive jurisdiction of formal proceedings to determine how decedent's [sic] estates subject to the laws of this state are to be administered, expended and distributed.") This argument ignores the fact that references to "the court" in § 15-3-105 and in other provisions of the (Idaho) Uniform Probate Code mean "the district court." I.C. § 15-1-201(6). It is true that under I.C. § 1-2208 and I.R.C.P. 82(c)(1)(A) magistrates may be assigned to hear proceedings involving will probates and administration of decedents' estates, but such assignments do not deprive the district judges of their subject matter jurisdiction. We conclude that the district court had jurisdiction of Olson's action to establish ownership of a one-half interest in the airplane and to force a sale of the airplane. The judgment is not void for lack of subject matter jurisdiction within the meaning of I.R.C.P. 60(b)(4).

Kirkham next asserts that the judgment is voidable due to the lack of proper notice and of evidence supporting the judgment. Rule 55(b)(2), I.R.C.P., provides that:

If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application. [Emphasis added.]

A prerequisite to the three-day notice requirement is an appearance in the action by the party against whom judgment by default is sought. This appearance is not limited to a formal court appearance. A narrow exception has been created by Newbold v. Arvidson, 105 Idaho 663, 672 P.2d 231 (1983). In Newbold the defendant visited the plaintiff's attorney at his office and later attended a deposition. Plaintiff's attorney at the deposition acknowledged that defendant was representing himself. Our Supreme Court held that this was sufficient to constitute an "appearance" requiring notice under I.R.C.P. 55(b)(2). We have held that the significant event in Newbold constituting an appearance was defendant's attendance at the deposition, coupled with counsel's acknowledgment that the defendant was representing himself. Marano v. Dial, 108 Idaho 680, 701 P.2d 300 (Ct.App.1985).

There is no similar event shown in the present case. The record before us merely shows telephone calls and correspondence between Kirkham's counsel and Olson's counsel regarding settlement negotiations. Beyond participating in preliminary settlement negotiations the record does not present any intent on the part of Kirkham to defend the action. Thus, Kirkham has not shown that an "appearance" was made entitling him to the three-day notice under I.R.C.P. 55(b)(2). We acknowledge that some courts have adopted a broader view of an "appearance." E.g., Christy v. Carlisle, 94 Nev. 651, 584 P.2d 687 (1978) (settlement negotiations and exchange of correspondence between plaintiff's counsel and defendant's insurance representative constituted an appearance). However, we do not read in Newbold an intent by the Idaho Supreme Court to go that far. Under the facts of the present case we hold that Kirkham did not make an appearance in the action triggering the requirement for notice under Rule 55(b)(2).

Notwithstanding that Kirkham had not made an appearance in the action, Kirkham further argues that his default was entered contrary to a "notice" he had received from Olson. The record indicates a "Notice of Intent To Take Default" dated January 31, 1984 was filed by Olson with the district court February 2, 1984. Counsel for Kirkham acknowledged at oral argument that this notice was received. However, Kirkham asserts that the notice was not timely served before the clerk's entry of default on February 8, 1984. This argument fails to note the distinction between a clerk's entry of default and a default judgment.

Under Rule 55, I.R.C.P., entry of default by the clerk and entry of judgment by default by the district court are two distinctly different acts. Earth Resources Co. v. Mountain States Mineral Enterprises, Inc., 106 Idaho 864, 683 P.2d 900 (Ct.App.1984). See also I.R.C.P. 55(c). Accord Johnson v. Murray, 201 Mont. 495, 656 P.2d 170 (1982); Sealey v. Majerus, 149 Mont. 268, 425 P.2d 70 (1967). Section (a)(1) of Rule 55 provides for the entry of default by the clerk or the court. Section (b) of Rule 55 provides for the entry of judgment by the clerk in certain circumstances and by the court in all other cases. Notice is required only when an "application for judgment" is made and must be served three days "prior to the hearing on such application." I.R.C.P. 55(b)(2). Therefore, entry of default by the clerk under Rule 55(a)(1) requires no notice to the party "who has failed to plead or otherwise defend as provided by these rules." See Sealey v. Majerus, supra.

In the notice, Olson made demand that Kirkham "answer or otherwise plead to the Complaint ... within seven (7) days of the service of this notice upon you." Upon failure to do so, Olson gave notice of her intent to "forthwith move for and cause your default to be entered for judgment against you for the relief demanded in the Complaint." The clerk's default was entered February 8, but the default judgment was not entered until April 27. The notice was timely for the judgment of default entered by the district court. Therefore, although no notice was necessary, we hold that timely notice was given in this case.

Next, Kirkham asserts that the judgment should be set aside because it is not supported by any proof of facts. However, the verified complaint stated that Neva Olson was married to A.F. Olson and "as such was and is possessed with a community property interest in the assets acquired by the marital community." It further stated that Kirkham and A.F. Olson were joint owners of the airplane; that A.F. Olson had passed away; that the community interest of A.F. Olson in the airplane vested solely in Neva Olson; and that she is entitled to a one-half interest in the airplane. A certified copy of the airplane's registration was attached to the complaint naming decedent and Kirkham as joint owners.

This is sufficient to establish a factual basis to support a default judgment. All that is required to support a default judgment is that the complaint contain a plain and concise statement of the cause of action and the defendant is given fair notice of the allegations as a whole. Tarnoff v. Jones, 17 Ariz.App. 240, 497 P.2d 60 (1972). "Upon default, the allegations of the complaint are taken as true." United Nuclear Corp. v. General Atomic Company, 96 N.M. 155, 629 P.2d 231, 316 (1980), appeal dismissed, 451 U.S. 901 (1981). On appeal, a defaulted defendant may not challenge the sufficiency of the evidence in a default judgment, he may only contest the sufficiency of the complaint and its allegations to support the judgment. Southern Arizona School for Boys, Inc. v. Chery, 119 Ariz. 277, 580 P.2d 738 (App.1978).

Generally, where the defendant has been defaulted a plaintiff has no obligation to introduce evidence in support of the allegation of its complaint. United Nuclear Corp. v. General Atomic Company, supra. Rule 55(b)(2), I.R.C.P., provides for an exception as follows:

If, in order to enable the court to enter judgment or to...