Pengelly v. Peeler

• Decision Date: 16 April 1909
• Citation: 101 P. 147,39 Mont. 26
• Parties: PENGELLY v. PEELER.
• Court: Montana Supreme Court

101 P. 147

39 Mont. 26

PENGELLY v. PEELER.

Supreme Court of Montana

April 16, 1909

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by Catherine Pengelly against D. R. Peeler as administrator of Jacob Fine, deceased. From an order setting aside a default judgment, and permitting defendant to answer plaintiff appeals. Affirmed.

Charles W. Pomeroy and Carpenter, Day & Carpenter, for appellant.

C. H Foot and W. H. Poorman, for respondent.

SMITH J.

This is an appeal from an order of the district court of Flathead county setting aside a default judgment and permitting the defendant to answer. The plaintiff, who was sister to the deceased, Jacob Fine, filed a claim against his estate in the sum of $500, for work, labor, and services performed by her during the years 1901 to 1906. The administrator rejected the claim, and this action resulted.

Summons was personally served on May 29, 1908, default entered on June 19th, and judgment entered June 20, 1908. On June 24th motion and notice of motion to vacate the judgment were served and filed, accompanied by the affidavits of the defendant and C. H. Foot, Esq., his attorney. The affidavit of Mr. Peeler contains the following allegations: "That through mistake, inadvertence, and neglect of himself and his counsel, C. H. Foot, he was prevented from appearing and answering in said action, as shown by the affidavit of his counsel hereto attached, and the following statement: That on the 2d day of June, 1908, he delivered to said counsel the summons and complaint in said action served upon him; that he does not remember whether at that time he told his counsel when the summons and complaint were served upon him, but believes he did; that he briefly discussed the case with his counsel, and then left him, instructing said counsel to look after the case and see that the answer was properly filed and his said counsel assured him that he would do so. This affiant had just returned the morning before from a three weeks' absence from the city of Kalispell, his home, and found a great deal of business accumulated during his said absence, and that for several days succeeding the delivery of said papers to his counsel, he was exceedingly busy with his duties as president of the First National Bank of Kalispell and had no time to give thought to said action, and, relying upon the promises of his said counsel, did not attempt to charge his mind therewith." This averment is followed by an affidavit of merits. In Mr. Foot's affidavit is found the following: "That on the 2d day of June, 1908, said D. R. Peeler called upon affiant in his office, in the city of Kalispell, and delivered to him a copy of the complaint and summons in the above-entitled action; that said defendant inquired of affiant what he had to do with the papers served upon him, and affiant replied that he would have to answer and defend in said action. The merits of the case were but briefly discussed between affiant and defendant at that time, as both had been aware for some time that such an action was to be commenced, and the merits of the case had been thoroughly discussed on previous occasions, and all the facts known to said defendant were known to affiant at that time, as he verily believes. In just what manner the information was conveyed affiant is unable to state, but at that time, to wit, June 2, 1908, affiant understood and believed from the conversation he had with said defendant that said summons had been served upon defendant that day, and that, immediately after the defendant left his office, he entered upon his desk calendar the date when time for answering would expire, to wit, June 22, 1908; that affiant at no time forgot that the day for answering, as he understood it, was on the 22d day of June, 1908, and he at all times fully intended to prepare his answer to said complaint, and have the same filed within the 20 days from the date of the service of the summons, and would have done so but for the misunderstanding between himself and said defendant; that just about the time said action was commenced affiant conversed with plaintiff's attorney, Charles W. Pomeroy, Esq., concerning the same, and their conversation was to the effect that the said case could not be reached for trial until late in the fall of the year 1908, as both parties to the action would have to take depositions of witnesses, all of whom, as to the facts and merits of the case, reside in England, as affiant is informed and believes. For this reason, and as no trial jury was expected till November, 1908, he made no haste to get the case at issue, therefore delayed preparing the answer until the 20th of June. In preparing to serve his answer he discovered for the first time that default had been entered in said action against said defendant. He immediately interviewed plaintiff's attorney, and informed him of his intentions to move to vacate the default, and asked plaintiff's attorney to consent to its being vacated, and to not enter the judgment on the default. This plaintiff's counsel at that time declined to do, and affiant then began the preparation of the papers necessary to vacate said default." An answer was tendered, admitting the death of Jacob Fine, the appointment and qualification of the defendant as administrator of his...