Peterson v. Crosier

• Decision Date: 31 July 1905
• Docket Number: 1628
• Citation: 29 Utah 235,81 P. 860
• Court: Utah Supreme Court
• Parties: PETERSON v. CROSIER

81 P. 860

29 Utah 235

PETERSON v. CROSIER

No. 1628

Supreme Court of Utah

July 31, 1905

APPEAL from District Court, Sevier County; John F. Chidester, Judge.

Action by Hannah Peterson against A. J. Crosier. From an order denying a motion to vacate a judgment in favor of plaintiff and granting defendant a new trial, he appeals.

AFFIRMED.

C. W Collins for appellant.

APPELLANT'S POINTS.

While a motion to open a default is addressed largely to the discretion of the court, all doubts should be resolved in favor of the application; and where the circumstances lead the court to hesitate as to the merits of the application, an order denying such motion to vacate the default will be reversed on appeal. If the plaintiff has a meritorious cause of action he will succeed on the merits; if he has not a meritorious cause of action, then it is all the more reason why defendant should be let in to defend and defeat the plaintiff's claim. This is the modern rule, where liberal rules of practice prevail, and has been approved by this court. (Thomas v. Morris, 31 P. 446 [Utah]; Utah Com'l & Sgs. Bk. v. Trumbo, 53 P. 1033 [Utah]; Vermont Marble Co. v. Black, 38 P. 512; Grady v Donahoe, 41 P. 41; Hanthorne v. Oliver, 51 P. 440 [Ore.].)

It was not contended, nor could it be, that the first affirmative defense pleaded in the answer tendered by defendant was not a meritorious defense. There was a little contention about the statute of limitations being a meritorious defense. This court has expressed itself upon this point also, and in line with other modern authorities. (Kuhn v. Mont, 44 P. 1036 [Utah]; Mitchell v. Campbell, 13 P. 190 [Ore.]; Hanthorne v. Oliver, 51 P. 440 [Ore.]; Wheeler v. Castor, 92 N.W. [N. D.] 381.)

We consider the showing of erroneous advice of counsel, and defendant's reliance thereon in good faith, as the strongest point on this motion, and most earnestly contend on that alone this court should reverse this case. This is a new point in this court, but we have many similar cases from states which have adopted the code practice, and so far as we have been able to find, where the facts are at all similar to this case, all hold the one way--in appellant's favor. (Douglass v. Todd, 31 P. 623; Wicks v. Lake, 21 Wisc. 410, 94 Am. Dec. 552; Whereatt v. Ellis, 70 Wisc. 207, 5 Am. St. Rep. 164; Baxter v. Chute, 50 Minn. 164, 52 N.W. 379, 36 Am. St. Rep. 633; Fuellhart v. Blood, 7 Pa. Dis. R. 575 [found in Gen. Dig., vol. 6, p. 1308]; Barton v. Harker, 55 A. [N. J. Sup.] 105; Gideon v. Dwyer, 40 N.Y.S. 1053, N.Y. cases collated; Crebler v. Eidelbush, 24 Wis. 162; Wood v. Shoenauer, 88 N.W. 411 [Minn.].)

The word "seduce" is the ultimate conclusion and the complaint must plead the facts which establish such conclusion. It must show some promise, inducement or artifice to gain the confidence and consent of plaintiff. (Gemmell v. Brown, 56 N.E. 691 [Ind.]; Lampman v. Bruning, 94 N.W. 562 [Iowa]; Baird v. Boehner, 33 N.W. 694 [Iowa].)

If the woman voluntarily submits to the connection, without being deceived, and without any false promise, deception or artifice, the law affords her no remedy and she cannot recover. And of course to prove these things they must be plead in the complaint. We call special attention to the first case cited for a full and clear statement of this principle. (25 Am. and Eng. Ency. of Law, p. 190-1; Breon v. Hinkle, 13 P. 289 [Ore.]; Patterson v. Haydon, 21 P. 129 [Ore.]; Delver v. Boardman, 20 Iowa 446; Baird v. Boehner, 33 N.W. 694 [Iowa]; Ferguson v. Moore, 39 S.W. 341 [Tenn.]; Stowers v. Singer, 68 S.W. 637 [Ky.]; Hogan v. Cregon, 6 Rob. [N.Y.] 138-150, cited in People v. Gumaer, 39 N.Y.S. 326; State v. Bryan, 8 P. [Kan.] 269; Disharoon v. State, 22 S.W. 699 [Tenn.], a very full discussion.) This is an action conferred by statute and must be brought within the time fixed by the statute, or the cause of action itself ceases to exist, and that this point may be raised by a general demurrer. This point is raised and properly so by a general demurrer to the complaint. (The Harrisburg, 119 U.S. 199, 30 Law Ed. 358; Ensign v. Lambert Mfg. Co., 26 S.E. [W. Va.] 431; Hanna v. Railway Co., 32 Ind. 113; Taylor v. Cranberry Co., 94 N. Car. 525; Tiffany, Death by Wrongful Act, sec. 121, citing many cases.)

King, Burton & King for respondent.

RESPONDENT'S POINTS.

There are certain presumptions attending the actions and proceedings of a trial court, particularly where it is one of general jurisdiction. The presumption of legality in its conduct prevails, and also that it has proceeded in accordance with well known and accepted principles of law. (2 Enc. Pl. and Pr., p. 418-419; Moore v. Thompson, 70 P. 930; Buell v. Enerich, 85 Cal. 116; Coleman v. Rankin, 37 Cal. 247; Haight v. Green, 19 Cal. 113; Woodward v. Backus, 20 Cal. 137.)

Where there is a difference of opinion between the appellate and the trial court, or it is a mere mistake of judgment, the appellate court will not reverse the action of the former. (2 Enc. Pl. and Pr., 419, 420, and cases cited; Cushman v. Brundrett, 50 N.Y. 296.)

Willful negligence is hardly excusable. The record shows no negligence upon the part of appellant's counsel; but even if there was the negligence of an attorney as imputed to his client, it is not ground for reversal of a cause in the appellate court. (Kuhn v. McAllister, 1 Utah 273; Smith v. Tunstead, 56 Cal. 177; Haight v. Green, 19 Cal. 118; Mulholland v. Heyneman, 19 Cal. 605; Ekel v. Swift, 47 Cal. 620.)

We also invite the attention of the court to the following recent decisions which bring the authorities upon this point down to date. (Texas Fire Insurance Co. v. Berry, 76 S.W. 219 [1903]; Osborne v. Leach, 133 N.C. 427 [1903]; Simon v. Hengels, 107 Ill. 174; Baltimore & Ohio Ry. Co. v. Ryan, 31 Ind.App. 597 [1903]; Gilchrist Transportation Co. v. Northern Grain Co., 107 Ill.App. 531; Daly v. Gardner, 1 Alaska 357 [1903]; Kupner v. Samuels, 84 N.Y.S. 195; Ingalls v. Lamar, 115 Georgia 296 [1902].)

The rule as to what words in a complaint are sufficient in a civil suit in an action for seduction, is stated as follows: "But it is believed that by the weight of authority, and according to the approved form a declaration charging that the defendant 'debauched and carnally knew' the woman is sufficient to charge seduction." (19 Enc. Pl. and Pr., pages 405-406; Mighell v. Stone, 175 Ill. 261; Mighell v. Stone, 74 Ill.App. 129; Witchell v. Blackford, 65 Tenn. 141; Stoudt v. Shepard, 73 Mich. 588.)

In an action for seduction, the allegations of the ultimate fact of seduction is sufficient without a statement of the acts made use of to deceive the plaintiff. (Brown v. Kingsley, 38 Iowa 220; Reese v. Cupp, 59 Ind. 566.)

A general demurrer that the complaint does not state facts sufficient to constitute a cause of action is not sufficient to raise the defense of the statute of limitations. (Thomas v. Glendenning, 13 Utah 47; Spanish Fork City v. Hopper, 7 Utah 235; Fullerton v. Bailey, 17 Utah 885; Whittaker v. Greenwood, 17 Utah 33; 13 Enc., Pl. and Pr., 131, and cases cited.)

The law upon this question is well stated in a recent treatise upon the Conflict of Laws by Prof. Raleigh C. Minor of the University of Virginia. On page 524 of this work, Prof. Minor says: "If the same statute that creates the remedy, prescribes the time within which the action thereon must be brought, it is generally construed as imposing that period for the prosecution of the remedy as a condition essential to prosecuting it at all. It becomes a part of the right itself, and is governed by the same law that regulates the right in other respects (lex loci delicti). But if the period of limitation is not prescribed by the same statute which confers the right, but is found in a general statute, the general principle applies, and it becomes a law relating to the remedy which will have no extra territorial force. In such case the law of the situs of the remedy (lex fori) again becomes 'the proper law.'" (Munos v. The Southern Pacific R. R. Co., 51 F. 188; Johnson v. R. R. Co., 50 F. 886; O'Shields v. R. R. Co., 83 Georgia 621.)

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This is an action by an unmarried woman for her own seduction. The complaint, in substance, alleges that plaintiff was an unmarried woman, and of the age of nineteen years, and at all times prior to the grievances mentioned she had been chaste and virtuous; that on or about the 25th day of April, 1902 at Salina, Sevier county, Utah and at divers times thereafter, during the month of May, 1902, at the same place, defendant, with force and violence, made an indecent assault upon plaintiff, and then and there wickedly seduced, debauched, and carnally knew her, whereby she became sick and pregnant, and on the 26th day of January, 1903, she was delivered of a child of which she was so pregnant. The complaint concludes with a demand for $ 10,000 damages. It was duly verified and filed January 4, 1904. The defendant, by his attorneys, filed a demurrer to the complaint, and, for cause of demurrer, alleged that the complaint did not state facts sufficient to constitute a cause of action. On March 1, 1904, the demurrer was overruled, and defendant given twenty days in which to answer. On March 16, 1904, defendant filed his answer, which consisted of a general denial of the allegations of the complaint. On the 21st day of May, 1904, the case was set for trial June 2, 1904, of which fact defendant and his attorneys had due notice. On June 3, 1904, the cause came on regularly for trial. Plaintiff, together with her counsel, was present in court. Defendant failed to appear either in person or...