Parsons v. Wrble

• Decision Date: 30 March 1911
• Parties: L. F. PARSONS, Appellant, v. JOE WRBLE, Respondent
• Court: Idaho Supreme Court

115 P. 8

19 Idaho 619

L. F. PARSONS, Appellant, v. JOE WRBLE, Respondent

Supreme Court of Idaho

March 30, 1911

ACTION TO QUIET TITLE-DEFAULT OF DEFENDANT-SETTING ASIDE DEFAULT AND JUDGMENT-DISCRETION OF TRIAL COURT-MERITORIOUS DEFENSE.

(Syllabus by the court.)

1. Under the showing of facts made in this action, the respondent was entitled to have the default set aside, the judgment vacated and to be allowed to defend.

2. The showing of respondent in support of his motion to set aside the default and vacate the judgment, with regard to the circumstances of mistake, inadvertence, surprise or excusable neglect, specified as grounds for such motion in sec. 4229 Rev. Codes, is sufficient.

3. Where only documentary evidence is before the court below and it renders its decision upon such evidence alone, this court will make an original examination of the evidence as contained in the record, and will exercise its judgment and discretion, the same as if the case were being presented to it in the first instance.

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. E. C. Steele, Judge.

Action to set aside default, vacate judgment and permit defendant to come in and defend, on action to quiet title. Default and judgment set side and defendant allowed to make this defense from which order of the lower court plaintiff appeals. Affirmed.

Order and judgment of the district court affirmed, with costs in favor of respondent.

John O. Bender and D. E. Hodge, for Appellant.

"In such cases (hearing on documentary evidence alone) the rule is that this court will make an original examination of the evidence as contained in the record, and will exercise its judgment and discretion the same as if the case were being presented to us for determination in the first instance." (Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Van Camp v. Emery, 13 Idaho 202, 207, 89 P. 752; Roby v. Roby, 10 Idaho 139, 77 P. 213.)

Mistaking the nature of a process by a defendant is by itself not a reason for setting aside a default and judgment taken against him. He is bound to read it and know what it is; and if, by reason of illiteracy or physical disability, this be beyond him, then he is bound to have it read and explained to him. Failing in this, he is bound by the default. (23 Cyc. 933; White v. Snow, 71 N.C. 232; Allen v. O'Neill, 4 Mo.App. 221; Ball v. Mander, 19 How. Pr. (N. Y.) 468; Teabout v. Roper, 62 Iowa 605, 17 N.W. 906; Lowe v. Hamilton, 132 Ind. 406, 31 N.E. 1117; Dean v. Noel, 24 Ky. L. 969, 70 S.W. 406; Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979.)

"A party seeking relief against a judgment on the ground of his excusable negligence must clear himself of the imputation of want of due diligence; he cannot have relief if the taking of the judgment appears to have been due to his own carelessness, slothfulness, or indifference to his own rights. Thus to put himself in a position where he can claim relief against an adverse judgment, he must unless he means to try his own case, retain an attorney practicing in the particular court." (23 Cyc. 937; Jett v. Herald, 23 Ky. 9; 62 S.W. 264; Union etc. Co. v. Lipscomb (Tex. Civ. App.), 27 S.W. 307; McClure v. Clarke, 94 Minn. 37, 101 N.W. 951; Post v. Carr, 42 W.Va. 72, 24 S.E. 583; Benedict v. Hadlow Co., 52 Fla. 188, 42 So. 239; Mutual etc. Co. v. Ross, 42 Ind.App. 621, 86 N.E. 506; Hays v. Bank, 21 Ind. 154; Cogdell v. Barfield, 9 N.C. 332; Churchill v. Brooklyn etc. Co., 88 N.C. 205.)

"According to the rule generally favored, the party seeking to have a judgment vacated or opened must establish the facts on which he relies by clear, strong, and satisfactory proof." (23 Cyc. 960-962; Hoffman v. Loudon, 96 Mo.App. 184, 70 S.W. 162; Johnson, Lane & Co. v. Nash-Wright Co., 121 Iowa 173, 96 N.W. 760; Brown v. Stegemann (Iowa), 81 N.W. 450; Swanstrom v. Marvin, 38 Minn. 359, 37 N.W. 455.)

Clay McNamee, for Respondent.

"The granting or refusing of a motion to set aside a default based upon affidavits is a matter within the proper discretion of the court before whom the motion is made; and unless that discretion has been abused the appellate court will not interfere." (Western Loan & Savings Co. v. Smith, 12 Idaho 94, 85 P. 1084; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Culver v. Mountainhome Electric Co., 17 Idaho 669, 107 P. 65; Baker v. Knott, 3 Idaho 700, 35 P. 172; Bailey v. Taaffe, 29 Cal. 423; Woodward v. Backus, 20 Cal. 137; Roland v. Kreyenhagen, 18 Cal. 455; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Garner v. Erlanger, 86 Cal. 60, 24 P. 805; Williamson v. Cummings Rock Drill Co., 95 Cal. 652, 30 P. 762.)

"The action of the trial court, in setting aside a judgment upon a showing of inadvertence and mistake, will not be disturbed if the appellate court cannot say, under all the circumstances, that the court below abused its discretion, even though the showing may be a weak one." (Underwood v. Underwood, 87 Cal. 523, 25 P. 1065.)

"The supreme court will not interfere with the action of the trial court in making an order setting aside a default, and judgment thereon, and permitting the defaulting party to answer, where it appears to have been made upon an affidavit of merits, unless it affirmatively appears that the court was without jurisdiction to make the order, or abused its discretion in making it." (Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. 52, 24 P. 1089.)

WOODS, District Judge. Ailshie, Presiding J., and Sullivan, J., concur.

OPINION

WOODS, District Judge.

On January 17, 1910, L. F. Parsons brought his action in the court from which appeal is taken, to quiet title against the respondent to the northeast quarter of section 26, in township 36 north, of range 3 W., B. M., in Nez Perce county, Idaho. Personal service of summons was had on respondent the 20th of that month, and on February 10, 1910, his default for nonappearance was entered. The next day judgment was entered against him in favor of appellant, as prayed for in the complaint. On June 2, 1910, respondent filed his motion to set aside the default and vacate the judgment; the hearing was had on affidavits filed by the respective parties and the amended answer proffered by respondent, and on August 4, the judge of the trial court made an order setting aside the default and judgment and permitting the respondent to come in and defend. From this order this appeal is taken.

There are several assignments of error, but in the argument they were argued, and probably can be considered, together.

The first question presented is this: Is the showing of respondent in support of his motion sufficient to establish the mistake, inadvertence, surprise or excusable neglect of sec. 4229, Rev. Codes?

It appears from the record that all of the evidence presented to the district court was documentary, and it is argued by appellant, and we think rightfully, that while the vacation of the judgment, or granting of a new trial is a matter in the discretion of the trial court, and that unless there is a manifest abuse of that discretion the order will not be reversed on appeal, still this rule is to be governed by the rule that in such cases (hearing on documentary evidence alone) this court will make an original examination of the evidence as contained in the record and will exercise its judgment and discretion the same as if the case were being presented to us in the first instance.

We have carefully examined all of the affidavits presented in the transcript and have arrived at the conclusion that the court below did not abuse its discretion in setting aside the default and vacating the judgment, provided there was a sufficient showing made to entitle the court to say that the respondent had a meritorious defense.

The affidavits of respondent upon which the order and judgment of the trial court were based show, in substance, that respondent became a naturalized citizen of the United States on July 1, 1901; that he is now of the age of thirty-six that about sixteen years ago he emigrated from Austria; that he is a Slavonian or Bohemian; that he does not speak or readily understand the English language; that he can barely read and cannot write the English language; that his occupation has been that of a common laborer; that about 1885, he made application and homestead entry on the northeast quarter of section 26, township 36 north, of range 3 W., B. M., and has at all times since resided upon, cultivated and improved said land; he made final proof upon the same as a homestead on the 1st day of August, 1904, and on the 1st day of August, 1904, patent and fee to said land was issued to him; that between the 1st of January, 1904, and the 1st of July, 1904, the board of county commissioners of Nez Perce county, prior to the issuance of the patent, attempted to assess and levy against said tract of land certain taxes for state, county, school and municipal purposes; that said proposed and attempted levy of taxes was illegal and void for the reason that the title was still in the government of the United States of America; that thereafter certain proceedings were had and done whereby said taxes so levied and assessed against said tract of land became delinquent, and thereafter the said county, at a certain sale for property delinquent for taxes for the year 1904, became the purchaser thereof, and thereafter it attempted to and did sell the said tract of land to one L. F. Parsons on the 17th day of July, 1908; that the purchase of said land from said county for delinquent taxes for the year 1904, on July 11, 1905, and the attempted sale of the same to the said Parsons on July 17, 1908, is and was illegal and absolutely void; that the...