Pearce v. Butte Electric Ry. Co.

• Citation: 106 P. 563,40 Mont. 321
• Parties: PEARCE v. BUTTE ELECTRIC RY. CO.
• Decision Date: 07 January 1910
• Court: United States State Supreme Court of Montana

106 P. 563

40 Mont. 321

PEARCE v. BUTTE ELECTRIC RY. CO.

Supreme Court of Montana

January 7, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by James Pearce against the Butte Electric Railway Company. From an order setting aside a default judgment for plaintiff he appeals. Reversed.

Mackel & Meyer, for appellant.

W. M Bickford and George F. Shelton, for respondent.

HOLLOWAY J.

In September, 1908, James Pearce commenced this action against the Butte Electric Railway Company to recover damages for personal injuries. The defendant appeared and filed a demurrer to the complaint. The following proceedings then appear from the court minutes: "October 19, 1908. This day by consent of counsel for the respective parties the demurrer to the complaint herein is submitted to the court without argument and is by the court overruled, and the defendant is given 20 days to answer. *** In this action the default of the defendant, Butte Electric Railway Company, a corporation, in not answering, was duly entered according to law on the 5th day of January, A. D. 1909." Thereafter on April 19, 1909, evidence was heard and judgment for the plaintiff was entered for the sum of $1,000. Thereafter on the 20th day of April, 1909, the defendant made its motion to set aside the default and vacate the judgment. The motion recites that it "will be made upon the files and records in this cause, upon the motion hereto attached, and upon the affidavits of George F. Shelton and W. M. Bickford, hereto attached." George F. Shelton and W. M. Bickford were the attorneys for the street railway company.

The affidavit of Mr. Shelton is to the effect that he has no recollection of the demurrer having been submitted, or of a ruling thereon, or of the allowance of time for defendant to answer. The affidavit of Mr. Bickford is to the same effect. Each affiant then sets forth the precautions usually taken by him to prevent a default in any cause in which he is counsel. Each sets forth that the first information he had of the default or judgment was on April 20, 1909. The motion was accompanied by an answer which is in effect a general denial. Counter affidavits were filed by counsel for plaintiff, in which it is asserted positively that Mr. Bickford was present in court on October 19, 1908, that he agreed to submit the demurrer without argument, and, when it was overruled, he asked for and was granted 20 days within which to prepare and file an answer. The motion of the defendant was granted, and plaintiff has appealed from the order.

1. In the affidavits of counsel for the railway company, it is asserted that there was not any notice given of the action of the court in overruling the demurrer. There does not appear to have been any effort made to have the court minutes of October 19, 1908, corrected, if they do not in fact speak the truth, and, from the minutes as they appear above, it is disclosed that counsel for defendant railway company was present in court at the time the order was made. Under such circumstances notice was not required to be given. Section 6594, Rev. Codes.

2. There was not any affidavit of merits filed in support of the motion; but, assuming that an answer may supply the place and perform the function of such an affidavit, the answer tendered in this instance does not do so. Mere denials of the allegations of the complaint do not disclose the facts constituting the defense. They may be sufficient as an answer for one who is in court asserting his right; but, as said by the Court of Appeal of California, in Peterson v Plunkett, 4 Cal. App. 302, 88 P. 283: "Upon a motion to set aside a judgment rendered in the absence of the defendant, in order that the court may know what his defense is, and...