Robinson v. Petersen
| Decision Date | 01 May 1922 |
| Docket Number | 4772. |
| Parties | ROBINSON v. PETERSEN. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Jack Briscoe, Judge.
Action by Frank J. Robinson against Julius Petersen. From an order setting aside a default judgment, and permitting the defendant to file a proposed answer, plaintiff appeals. Reversed.
Belden & De Kalb, of Lewistown, for appellant.
Cheadle & Cheadle, of Lewistown, for respondent.
Plaintiff below, appellant here, instituted this action in the district court of Fergus county on May 27, 1920. Summons was duly issued, and on June 4th regularly served upon defendant. On June 25th default was taken, proof made, and judgment entered. August 7th defendant served and filed his notice of motion to vacate and set aside the default and judgment which motion was supported by affidavit of his counsel and he tendered therewith his proposed answer. Pursuant to said notice the motion was heard on August 16th, and on September 2d the court made its order, sustained the same, setting aside the default and judgment, and permitting the proposed answer to be filed. This appeal is from that order.
Counsel's affidavit offered in support of the motion was the only showing upon which the court made the order appealed from. The affidavit, after reciting that affiant is an attorney at law, sets forth:
"That on or about the 15th day of June, 1920, the defendant in the above-entitled action retained him as such attorney at law to appear for him in the said cause; affiant further says that he misunderstood the date upon which the appearance of defendant in said action was due, and mistakenly supposed it to be the 5th day of July, 1920 that in fact the said appearance was due on the 24th day of June, 1920, as affiant learned upon examination of the register of actions in the office of the clerk of the above-entitled court; that, when affiant, discovered the true date at which the said defendant was required to appear in the said action, it was subsequent to the said 24th day of June, 1920."
Section 6589 of the Revised Codes of 1907 provides:
"The court may, in furtherance of justice, * * * upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect."
The question for our determination is: Has the defendant, by the above affidavit, brought himself within the provisions of the statute? If he has done so, this court will not interfere, for it has repeatedly said that every such case must be decided upon its own facts, and that an application to set aside a default is addressed to the sound discretion of the trial court, and its action will not be disturbed by this court unless it is manifest that its discretion has been abused. Hegaas v. Hegaas, 28 Mont. 266, 72 P. 656; Greene v. Rowan, 29 Mont. 263, 74 P. 456; Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, and cases cited on page 266, 112 P. 445.
The affidavit shows that defendant employed counsel to defend this action; that he (counsel) misunderstood the date upon which the appearance of defendant was due, and mistakenly supposed it to be the 5th of July instead of the 24th of June. It does not state a single fact that would or could cause him to misunderstand, nor a single fact that would or could cause him to mistakenly suppose that he had until the 5th of July in which to make an appearance, and in his argument here he frankly admitted that he supposed that the papers had been served on the defendant on the 15th day of June, the day defendant retained him, but no reason whatsoever was given for this supposition. We are left, then, to do the impossible--base a presumption upon a presumption--to presume that counsel presumed that defendant had been served with process that day.
An examination of the record in all of the cases cited by defendant discloses that the affidavit or affidavits in each case recited facts upon which the conclusion of excusable neglect was drawn. In Pengelly v. Peeler, 39 Mont 26, 101 P. 147, from which he quotes at length, we find that the record discloses an affidavit of facts showing a mistake of counsel occasioned from a conversation with defendant. In Voelker v. Gold Curry Con. Min. Co., 40 Mont. 466, 107 P. 414, the affidavit shows that the mistake occurred in transcribing a date from a written stipulation into a day book kept by counsel, and that, after the making of the entry in the book, the stipulation was mailed to the clerk of court in a distant town, and counsel relied upon the erroneous book entry for his date upon which to make appearance. In Jensen v. Barbour, 12 Mont. 566, 31 P. 592, the affidavit recites that the mistake was occasioned by the fact that leap year had added another day to February, and counsel had inadvertently miscalculated his time on that...
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