Salt Lake Hardware Co. v. Neilson Land & Water Co.

• Decision Date: 16 August 1913
• Docket Number: 2503
• Citation: 43 Utah 406,134 P. 911
• Parties: SALT LAKE HARDWARE CO. v. NEILSON LAND & WATER CO
• Court: Utah Supreme Court

134 P. 911

43 Utah 406

SALT LAKE HARDWARE CO. v. NEILSON LAND & WATER CO

No. 2503

Supreme Court of Utah

August 16, 1913

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Salt Lake Hardware Company against Neilson Land & Water Company.

From an adverse order defendant appeals.

AFFIRMED.

G. M Sullivan for appellant.

Dey Hoppaugh & Fabian for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The appellant by this appeal complains of a ruling denying his motion to set aside a judgment rendered on a hearing in its absence, and to grant a new trial.

The showing made is this:

The suit was commenced and the judgment rendered in Salt Lake County. In the early proceedings the defendant was represented by an attorney residing in Sanpete County. He had filed a demurrer to the complaint, which by consent was overruled. He then filed an answer putting the case at issue. Owing to duties of a public nature, the attorney was unable to fully take care of the defendant's interest, and thereupon, and on the 1st of October, 1912, the defendant, through its president, who owned and held a majority of the capital stock of the defendant, employed an attorney at Salt Lake to assist in the case, if called for trial. On the next day the Salt Lake attorney notified plaintiff's attorneys, who also resided in Salt Lake, that he had been retained as local and associate counsel for the defendant, and that all notices be served on him. The receipt of this notice was acknowledged by writing, in which plaintiff's attorneys stated that the demurrer had been overruled, and an answer filed. They further stated:

"We may want to reply to the answer. Our time has expired; but, if we find it necessary to do so, we presume we shall have your permission, provided it does not in any way interfere with your preparation of the case. The case has not yet been set for trial."

The letter was written October 4th. The Salt Lake attorney for the defendant and plaintiff's attorneys were friendly, and had theretofore in other cases granted each other permission to file pleadings out of time, and the former, believing, as he deposed, that a reply would be filed before the case was called for trial, relied on the latter giving him notice when the case was set for trial, though neither an express nor an implied promise to do so was made, nor is it made to appear that they otherwise were so obligated. By reason of this, and also because the president of the defendant at the time of the employment of the Salt Lake attorney told him that the case probably would be compromised and settled, the Salt Lake attorney, being employed only as associate and local counsel to assist in the case, if called for trial, did not give the matter the attention he otherwise would have given it. No reply was filed.

So the matter stood until the 1st of January, 1913, when the case on a previous posted notice in the clerk's office of the setting of cases, was set for trial on the 7th of March following. On that day the plaintiff appeared with its witnesses ready for trial. Neither the defendant nor either of its attorneys appeared. The case was called; the plaintiff made its proof and took judgment in accordance with its complaint. On the same day a cost bill, without service, was filed by plaintiff. Five days thereafter an execution was issued and served on the defendant's president. Then on the 20th of March a motion was made by the defendant, supported by affidavits, to vacate the judgment, and to grant a new trial. The Salt Lake attorney deposed that neither he nor the defendant, nor any of its agents or officers, had any knowledge or notice of the setting of the case for trial. The agents and officers of the plaintiff, and who were familiar with the matters in controversy, and who had charge of them on plaintiff's behalf, deposed that the second week in January, and after the case had been set for trial, and they notified thereof, t...