Pacific Acceptance Corporation v. McCue
| Citation | 228 P. 761,71 Mont. 99 |
| Decision Date | 01 July 1924 |
| Docket Number | 5517. |
| Parties | PACIFIC ACCEPTANCE CORPORATION v. MCCUE ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied Sept. 10, 1924.
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by the Pacific Acceptance Corporation against T. F. McCue and another. From an order setting aside a judgment for plaintiff by default, plaintiff appeals. Reversed.
Stephen J. Cowley, of Great Falls, for appellant.
T. F McCue, of Great Falls, for respondents.
This is an appeal from an order of the district court setting aside a default judgment against the defendant, T. F. McCue. The summons was served on Mr. McCue October 1, 1923. The last day for appearance, October 21st, fell on Sunday, so that he had all of the 22d in which to appear. No appearance having been made by him on October 22d, the plaintiff, on October 23d filed a præcipe with the clerk of the court, requesting that defendant's default be entered. The clerk thereupon entered the default of the defendant and made the appropriate indorsement upon plaintiff's complaint. Upon the same day, October 23d, defendant filed an answer to the complaint. The answer was: "He denies each and every allegation matter, and thing set out in said complaint." On November 13th the clerk entered judgment against the defendant, pursuant to the default which had been entered as aforesaid. On November 30th defendant gave notice that upon the 5th of December he would move the court to set aside the default judgment entered against him. With this notice he filed an affidavit and an amended answer. Thereafter affidavits were filed in opposition to defendant's motion, and after that other affidavits were filed in behalf of both parties.
Summed up, the defendant's motion was based upon what he terms was excusable neglect on his part. He averred in his affidavit that on October 18th, 19th, and 20th he was so busy with other matters in his office that he did not have time to draw an answer in this case, intending to draw it on October 22d, which was within time, but on that day he was confined to his room with a severe cold and fever until about 4 o'clock in the afternoon, when he went to his office but, by reason of a violent headache, entirely overlooked the time for filing the answer and forgot it was due. He averred that on the next morning, October 23d, he recollected that an answer was due in the case, immediately prepared it, and caused it to be served upon the attorney for the plaintiff in the forenoon; that the attorney for plaintiff accepted service thereon; that immediately after lunch the answer was filed; and that the attorney for plaintiff "between the time of accepting service of said answer and the filing of the same" filed the præcipe for default.
Hazel Hickman, describing herself as a clerk in the office of the attorney for the plaintiff, filed an affidavit in which she said she had read the affidavit of the defendant, "and that after such reading she states positively that the statements therein contained, with reference to the attempted service of defendant's answer and the filing and taking default herein, are untrue." She affirmed that on the night of the 22d she took the præcipe and proposed default blank home with her, and on her way to work on the morning of the 23d, at 9 o'clock, stopped at the office of the clerk of the court and filed the præcipe and had the default entered; that her employer, the attorney for the plaintiff, was absent from his office on that day, the 23d, being in Flathead county, Mont., at that time; that the attempted service of the answer was made upon her during the afternoon of that day, the default having been entered in the morning, as is above stated.
It will not serve any useful purpose to narrate the contents of the other affidavits. They contain much matter not material to the issue and do not bear essentially upon the question of excusable neglect on part of the defendant.
From the facts and circumstances appearing in the record we have no doubt that the default was entered before the answer was served or filed. The precise question then is: Did the fact that McCue was confined to his room on the 22d of October until 4 o'clock in the afternoon, and that by reason of a headache he forgot the answer was due on that day, constitute excusable neglect? A negative answer is compelled.
Every application to set aside a default must be determined by its own facts. The application is an appeal to the sound judicial discretion of the court. Only in case of an abuse of such discretion will the ruling of the court thereon be disturbed. So this court has held many times. Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 P. 445, and cases cited; Beadle v. Harrison, 58 Mont. 606, 194 P. 134; Eder v. Bereolos, 63 Mont. 363, 207 P. 471.
It is recognized, also, that a stronger showing of an abuse of discretion should be made to warrant a reversal where the court has set aside a default than where it has refused to do so (Beadle v. Harrison, 58 Mont. 606, 194 P. 134; Farmers' Co-op. Ass'n v.
Ropes, 57 Mont. 48, 188 P. 141; Greene v. Montana Brewing Co., 32 Mont. 102, 79 P. 693), for the reason that the law favors a trial on the merits.
"The design and purpose of the statute is to further the administration of justice so that the very right upon the merits may be determined, and to that end to grant relief from excusable neglect, in cases where diligence is shown in applying promptly for the relief sought, provided the opposite party be not deprived of any advantage to which ...
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