Richards v. Richards

• Decision Date: 14 May 1913
• Citation: 132 P. 576,24 Idaho 87
• Parties: WILLIAM A. RICHARDS, Respondent, v. FRANCES L. RICHARDS, Appellant
• Court: Idaho Supreme Court

132 P. 576

24 Idaho 87

WILLIAM A. RICHARDS, Respondent, v. FRANCES L. RICHARDS, Appellant

Supreme Court of Idaho

May 14, 1913

MOTION TO VACATE JUDGMENT-APPEALABLE ORDER-MOTION FOR CONTINUANCE REVIEWABLE UPON APPEAL FROM JUDGMENT-GRANTING CONTINUANCE IN DISCRETION OF COURT.

1. Under the provisions of sec. 4198 of the Rev. Codes of this state, "All pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffice address," etc.

2. A motion for continuance is reviewable upon appeal from the judgment.

3. A motion for continuance is addressed to the sound legal discretion of the court, and unless there is a clear abuse of that discretion, the order made will not be disturbed on appeal.

4. Where a motion was made for a continuance and was denied, and no appeal was taken from the final judgment in the case, a court should not thereafter grant a motion made to vacate and set aside the judgment where the motion is based upon the same grounds and facts set forth in the motion for continuance and where such motion is made after the time for appeal from the judgment has expired.

5. Where there is no abuse of discretion on the part of the trial court in denying a continuance upon the showing made there can be no abuse of discretion in subsequently denying a motion to vacate the judgment entered in the same case, where the motion to vacate is based upon the same showing and state of facts disclosed in the motion for continuance.

6. A motion to vacate and set aside a judgment under the provisions of sec. 4229, Rev. Codes, is addressed to the sound legal discretion of the court, and when that discretion has been brought to bear upon all the facts presented in the motion and has been exercised in the light of the statutes bearing upon the questions encompassed by the motion, and there is nothing which makes it appear that such discretion has been arbitrarily exercised in disregard of the established rules of law and principles of justice, an appellate court will not disturb the order and judgment of the court that was called upon to exercise the discretion.

7. Where a motion is made to set aside and vacate a decree of divorce, and it appears that at the time of the hearing on the motion one of the parties has remarried, the court will ordinarily require a stronger showing before vacating the judgment than he would require under other circumstances or in an ordinary case.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edw. A. Walters, Judge.

Action for divorce. Judgment for plaintiff. Defendant moved to vacate the judgment. Motion denied. Defendant appeals. Affirmed.

Affirmed.

Richards & Haga and W. J. Lamme, for Appellant.

This appeal in no way involves the question of the correctness of the refusal of a continuance on the showing then made. It is devoted solely to the question whether the trial court erred in denying the motion to vacate and set aside the judgment on the ground of inadvertence and surprise on the showing made on the latter motion. It necessarily involves a careful examination of the record, and cannot be considered by this court on motion to dismiss. (Hibernia Sav. & Loan Soc. v Cochran, 134 Cal. 19, 66 P. 732; Beebe v Guinault, 29 La. Ann. 795; 4 Ency. L. & P. 273; Corder v. Speake, 37 Ore. 105, 51 P. 647; Davis' Estate, 27 Mont. 235, 70 P. 721; Centerville etc. Ditch Co. v. Bachtold, 109 Cal. 111, 41 P. 813; 2 Hayne, New Trial and Appeal, p. 1519.) The order denying the motion to set aside and vacate the judgment was certainly an appealable order. (Oliver v. Kootenai County, 13 Idaho 281, 90 P. 107; Shumake v. Shumake, 17 Idaho 655, 107 P. 42; O'Donnell v. Murphy, 10 Cal.App. 1, 100 P. 1071; Hill v. Chicago & Evanston Ry. Co., 129 U.S. 170, 9 S.Ct. 269, 32 L.Ed. 651; Kasson's Estate, 135 Cal. 1, 66 P. 871.)

The granting or refusal to grant a motion for a new trial undoubtedly rests in the sound, legal discretion of the court. But the abuse of such discretion will be reviewed and corrected on appeal. (Thum v. Pyke, 6 Idaho 359, 55 P. 864.)

"By reason of the public interest in a divorce case the court should be especially inclined to set aside a default." (2 Bishop, Marriage, Divorce and Separation, p. 277, sec. 669; McBlain v. McBlain, 77 Cal. 507, 20 P. 61; 2 Nelson on Divorce and Separation, 733-735, 775.)

In all doubtful cases the general rule of the courts is to incline toward granting relief from the default, and to bring about a judgment on the merits. (Cutler v. Haycock, 32 Utah 362, 90 P. 897; Utah Commercial Bank v. Trumbo, 17 Utah 207, 53 P. 1033.)

H. A. Baker and Sullivan & Sullivan, for Respondent.

After final judgment was entered, if appellant desired to have reviewed the matters and issues raised on the hearing of the motion for continuance, her remedy was an application for a new trial or an appeal from the final judgment, and she cannot now raise the same questions upon an appeal from the order denying her motion to vacate and set aside the judgment. (Secs. 4800, 4832, Rev. Codes; Home for Care of Inebriates v. Kaplan, 84 Cal. 486, 24 P. 119; Worth v. Emerson, 3 Cal.App. 158, 85 P. 664; 2 Hayne, New Trial and Appeal, sec. 199; Reid v. Fillmore, 12 Wyo. 72, 73 P. 849.)

It is well settled that an order denying an application for continuance should be reviewed on an appeal from the final judgment. (Reynolds v. Corbus, 7 Idaho 481, 63 P. 884; Rankin v. Caldwell, 15 Idaho 625, 99 P. 108; Storer v. Heitfeld, 17 Idaho 120, 105 P. 55; Miller v. Brown, 18 Idaho 200, 109 P. 139; Walsh v. Winston Bros. Co., 18 Idaho 772, 111 P. 1090; 2 Hayne, New Trial and Appeal, p. 999.) This court has repeatedly held that the granting or denying of motions of this character is within the sound discretion of the trial court, and unless an abuse of this discretion has been plainly shown, the order of the trial court will not be interfered with. (Citing authorities given in opinion of the court; Dusy v. Prudom, 95 Cal. 646, 30 P. 798; 23 Cyc. 937, 938.)

"A marriage of the prevailing party in a divorce suit does not preclude relief to the other party by vacating the decree in a proper case, although there is well-justified reluctance to annul such decrees, and it should be done only after the most careful consideration." (14 Cyc. 719; Webster v. Webster, 54 Iowa 153, 6 N.W. 170; Wortman v. Wortman, 17 Abb. Pr. (N. Y.) 66; Whittley v. Whittley, 60 Misc. 201, 111 N.Y.S. 1078; Edson v. Edson, 108 Mass. 591, 11 Am. Rep. 393; Whittaker v. Whittaker, 151 Ill. 266, 37 N.E. 1017; Day v. Nottingham, 160 Ind. 408, 66 N.E. 998; Scripture v. Scripture, 70 Hun (N. Y.), 432, 24 N.Y.S. 301; Lawrence v. Lawrence, 73 Ill. 577.)

AILSHIE, C. J. Stewart, J., concurs. Sullivan, J., did not sit at the hearing of this case.

OPINION

AILSHIE, C. J.

This is an appeal from an order refusing to vacate and set aside a judgment. The action was for divorce. Plaintiff resides in Blaine county, Idaho, and defendant resides in Salt Lake City, Utah. Complaint was filed August 2, 1911. Summons was served and the defendant made general appearance by demurrer filed October 10th. Demurrer was thereafter overruled and answer and cross-complaint were filed November 13, 1911.

Defendant denied the material allegations of the complaint, and in a cross-complaint alleged her desertion by the plaintiff and prayed for a decree of divorce from plaintiff and for certain property and attorneys' fees, etc. On the 14th of November the plaintiff's counsel filed a demurrer to the cross-complaint and also a motion for judgment on the pleadings. Up to this time defendant had been represented by the law firm of Evans & Evans, of Salt Lake City, and the pleadings filed in the case had been signed by them and no attention had apparently been paid to the provisions of sec 4198 of the Rev. Codes of this state, which requires that "all pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffice address," etc. No question, however, was raised by plaintiff as to the failure of the pleadings on behalf of the defendant to be signed by a resident attorney. On November 15, 1911, it appears that Evans & Evans wrote to Hon. C. O. Stockslager, addressing their letter to Hailey, Idaho, requesting him to associate himself with them as counsel in the case. This letter was forwarded from Hailey to Judge Stockslager at Twin Falls and was by him turned over to A. M. Bowen, an attorney of Twin Falls. Mr. Bowen thereupon wrote to Evans & Evans that he was advised by his partner, Mr. Porter, that the case could be set for trial at any time not later than Saturday, November 25th, but that it would be impossible for his firm to represent them. Evans & Evans received this letter on the 24th, and thereupon called W. J. Lamme, an attorney of Hailey, over the phone and engaged him to represent them. Mr. Lamme was entered as associate counsel on November 24th, and on the same day the case was set for trial the following day, November 25th, at 2 o'clock. Mr. Lamme thereupon notified Evans & Evans by wire, and it appears from their affidavits that they and the defendant found that, according to the train schedules they could not reach Hailey in time for the trial on Saturday, and they so notified Mr. Lamme. On the 25th, when the case was called, the defendant did not appear, neither did her attorneys, Evans & Evans, appear. Mr. Lamme filed a motion supported by his affidavit asking for a continuance, setting up the fact that he believed that the defendant had a meritorious case and the nature and manner of his employment and his...