Peters v. Walker

• Decision Date: 24 May 1923
• Citation: 215 P. 845,37 Idaho 195
• Parties: CHARLES PETERS, Appellant, v. WILLIAM S. WALKER, Respondent
• Court: Idaho Supreme Court

215 P. 845

37 Idaho 195

CHARLES PETERS, Appellant, v. WILLIAM S. WALKER, Respondent

Supreme Court of Idaho

May 24, 1923

RULES OF DISTRICT COURT-JUDICIAL NOTICE-SETTING OF CAUSE NOTICE-DEFAULT JUDGMENT-SETTING ASIDE-DISCRETION OF COURT.

1. This court does not take judicial notice of the rules of the district courts.

2. In the absence of a statutory provision or rule requiring that parties be expressly notified of the setting of a cause, no such notice need be given, but the court has power to set it for trial at a regular term, and it is incumbent on the parties and their counsel to keep informed.

3. An order of the district court refusing to set aside a default judgment will not be reversed unless it involves an apparent abuse of discretion.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Raymond L. Givens, Judge.

Action to quiet title to water right. Order denying motion to set aside judgment. Affirmed.

Order affirmed, with costs to respondent.

E. G Davis, for Appellant.

The discretion with which a trial court is vested by sec. 6726 C. S., to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise or excusable neglect, should be resolved, in case of doubt, in favor of the application. (Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630.)

This was a default judgment entered while the case was at issue and is void. (Vincent v. Black, 30 Idaho 636, 166 P 923.)

William Healy, for Respondent.

The notice to appellant to appoint another attorney was given in accordance with the requirement of law. (C. S., secs. 6577, 7200, 7201.)

No notice of the trial of the cause in the absence of the adverse party is required to be given. (C. S., secs. 6838, 6839; Dusy v. Prudom, 95 Cal. 646, 30 P. 798; Bell v. Peck, 104 Cal. 35, 37 P. 766; Eltzroth v. Ryan, 91 Cal. 584, 27 P. 932.)

Times of holding terms of court are matters of public record of which litigants are presumed to have knowledge. (C. S., sec. 6461.)

The refusal of the trial court to set aside the judgment in this case rested within his sound discretion. (C. S., sec. 6726; Ticknor v. Maginnis, 33 Idaho 308, 193 P. 850; Armstrong v. Hartford Fire Ins. Co., 33 Idaho 303, 195 P. 301; Valley State Bank v. Post Falls etc. Co., 29 Idaho 587, 161 P. 242; McMunn v. Lehrke, 29 Cal.App. 298, 155 P. 473.)

MCCARTHY, J. Budge, C. J., and William A. Lee, J., concur.

OPINION

MCCARTHY, J.

This is an appeal from an order denying a motion to set aside a default judgment. May 21, 1920, appellant started this action against respondent in the district court for Owyhee county. January 26, 1921, a demurrer having been overruled, respondent filed and served his answer and cross-complaint. May 17, 1921, appellant filed and served his answer to the cross-complaint. January 26, 1921, the parties, through their counsel of record, stipulated that the action should be tried in chambers at Boise, Idaho, at such time as might mutually be agreed upon between them, and arranged with the judge of the court, but not later than April 1, 1921. The case was not heard in accordance with that stipulation. August 23, 1921. The case was not heard in accordance with that stipulation. August 23, 1921, the then attorney of record for appellant withdrew from the case and served written notice upon respondent's attorney. August 24th respondent's attorney served written notice upon appellant as follows:

"You are hereby notified that on August 22, 1921, your attorney Harry C. Wyman, withdrew as such and served his formal notice of withdrawal as your attorney; you are further notified that the defendant, William S. Walker, in this action intends to proceed further and to secure judgment in accordance with the prayer of his cross-complaint in said action and you are required to appoint another attorney or to appear in person in the said cause."

September 20, 1921, the next term of said court opened at Silver City, in Owyhee county. Appellant had not appeared again in the cause either in person or by attorney. On respondent's motion the court entered the default of appellant, heard the case and entered judgment for respondent on his cross-complaint. It will be noted that the default of respondent was not in failing to answer the cross-complaint, because he had filed his answer, but was in failing to substitute an attorney for the one who had with-drawn, or to appear in person, pursuant to the notice served upon him by respondent. Twenty-five days had elapsed between the service of such notice and the time the cause was called and heard.

It cannot be contended that the judgment is void. Appellant invokes the rules of the district court for the third judicial district, claiming that under them respondent should have filed a notice of issue and given notice of the setting of the case. The rules are not in the record. This court does not take judicial notice of the rules of the district courts. (C. S., sec. 7933; Bothwell v. Bryant, 36 Idaho 337, 210 P. 1003; Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97.) Cases must be entered on the calendar by the clerk according to the date of issue and must remain upon it from term to term until finally disposed of. (C. S., sec. 6838.)

"Sec. 6839. Either party may bring an issue to trial or to a hearing, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case and take a dismissal of the action, or a verdict, or judgment, as the case may require."

In the absence of a statutory provision or rule requiring that parties be expressly notified of the setting of a cause, no such notice need be given, but the court has the power to set it for trial at a regular term, and it is incumbent on the parties and their counsel to keep informed. (Eltzroth v. Ryan, 91 Cal. 584, 27 P. 932; Dusy v. Prudom, 95 Cal. 646, 30 P. 798; Bell...