Savage v. Stokes

• Decision Date: 13 January 1934
• Docket Number: 6064
• Citation: 28 P.2d 900,54 Idaho 109
• Parties: M. L. SAVAGE, Respondent, v. WILLIAM H. STOKES, Appellant
• Court: Idaho Supreme Court

28 P.2d 900

54 Idaho 109

M. L. SAVAGE, Respondent, v. WILLIAM H. STOKES, Appellant

No. 6064

Supreme Court of Idaho

January 13, 1934

JUDGMENT-DEFAULT JUDGMENT-VACATION-REVIEW-CONSTITUTIONAL LAW-TRIAL-SETTING CAUSE FOR TRIAL-NOTICE-COUNTERCLAIM.

1. Reviewing court will make original examination of evidence on appeal from order setting aside judgment, where motion to vacate was heard entirely on affidavits.

2. Motion to vacate default judgment is addressed to trial court's sound judicial and reviewable discretion (I. C A., sec. 5-905).

3. Order setting aside default judgment will not be disturbed on appeal unless trial court abused discretion (I. C. A., sec 5-905).

4. Judgment is "property" of which owner must not be deprived without due process.

5. "Mistake" or "neglect" relied on for relief from default judgment must be such as may be expected of reasonably prudent person situated like judgment debtor (I. C. A., sec. 5-905).

6. Before trial court can set aside default judgment, facts must be shown which can appeal to court's discretion (I. C A., sec. 5-905).

7. Setting aside default judgment for mistake or excusable neglect held unwarranted where judgment debtor, though immediately apprised of judgment, waited six months before moving to set it aside and then failed to bring motion on for hearing; delay being unreasonable (I. C. A., sec. 5-905).

8. Court may, at any time, vacate judgment if invalidity is shown on face of judgment-roll; regardless of statutory limitations (I. C. A., sec. 5-905).

9. Void judgment may be vacated on motion made within reasonable time where invalidity does not appear on judgment-roll.

10. In actions not arising on contract for recovery of damages or money only, clerk must enter default without praecipe or application therefor being necessary (I. C. A., sec. 7-801 subds. 1, 2).

11. Case involving counterclaim for wrongful attachment held properly set for trial, notwithstanding clerk's failure to enter formal default on cross-complaint, where parties failed to object at the time (I. C. A., sec. 7-801, subds. 1, 2).

12. Party need not be expressly notified of setting of case for trial.

13. Plaintiff held not entitled to notice of setting of trial on cross-complaint during time when plaintiff was in default.

14. Defendant's failure to move for dismissal or nonsuit as to plaintiff's cause of action held not to prevent trial and recovery on counterclaim, where complaint and counterclaim involved same transaction, both relating to accounting.

15. Written notice to plaintiff to appoint new attorney or appear in person, after plaintiff's attorney withdrew, held not essential to court's jurisdiction, where plaintiff had actual notice of withdrawal and had another attorney appear to secure postponement (I. C. A., sec. 3-206).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Appeal from an order of the district court vacating a judgment. Reversed.

Order reversed. Costs to appellant.

James A. Wayne, for Appellant.

Where an application to set aside a default and vacate a judgment is made entirely upon affidavits, the appellate court will make an original examination of the evidence and will exercise its judgment and discretion the same as if the application were presented to it in the first instance. (Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

Where the ground of the application is that the judgment by default was entered against the applicant by reason of his inadvertence, surprise and excusable neglect, the applicant must show that his neglect was in fact excusable, and was such as might be expected on the part of a reasonably prudent person under the circumstances. The statute does not excuse utter indifference and inattention to business. And where the trial court has abused its discretion in the granting of such motions without sufficient reason, this court has not hesitated to reverse the lower court. (Domer v. Stone, 27 Idaho 279, 149 P. 505; Boise Valley Tr. Co. v. Boise City, 37 Idaho 20, 214 P. 1037; Valley State Bank v. Post Falls L. & W. Co., 29 Idaho 587, 161 P. 242.)

There is no requirement that parties be expressly notified of the setting of a case for trial; it is incumbent on the parties and their counsel to keep informed as to the condition of their cases. (Neustel v. Spokane I. Ry. Co., 27 Idaho 367, 149 P. 462; Peters v. Walker, 37 Idaho 195, 215 P. 845; McAllister v. Erickson, 45 Idaho 211, 261 P. 242.)

Chas. E. Horning, for Respondent.

The application to vacate the judgment was made during the term at which the judgment was rendered and heard within the time prescribed by the statute. The mere making of the motion was sufficient to preserve the jurisdiction of the court over the judgment. (Sec. 5-905, I. C. A., formerly R. S., sec. 4229; C. S., sec. 6726; United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129.)

The court properly vacated the judgment in the case at bar under respondent's showing of an agreement that in no event would the case be set down for trial or further proceedings taken without respondent being notified, and in violation of which, without notice to respondent, appellant secured the judgment. (Sedberry v. Jones, 42 Tex. 10; 34 C. J., sec. 498, p. 285.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

This appeal is from an order vacating and setting aside a judgment entered April 23, 1932. The pertinent facts are, as follows:

February 13, 1930, respondent, M. L. Savage, commenced an action against appellant, William H. Stokes, to recover $ 2,188.43, alleged to be owing on an account for goods, wares and merchandise. A writ of attachment was issued and levied upon certain machinery owned by appellant. The appellant made answer to respondent's complaint and interposed a cross-complaint and counterclaim. The answer admitted the purchase of the goods, wares and merchandise from respondent, alleged payment in full therefor and denied any indebtedness owing from appellant to respondent. The counterclaim alleged that a contract had been entered into between respondent and appellant for the driving of a tunnel by appellant, performance of the contract and also the sale of a motor pulley and certain supplies furnished by appellant to respondent; that by these transactions respondent became indebted to appellant in the sum of $ 14,574.35; that respondent had furnished certain supplies to appellant and made some payments in cash on the contract, the total amount of all these payments and credits amounting to $ 13,266.25, thus showing a balance due from respondent to appellant of $ 1,308.10, for which amount he prayed judgment. In the cross-complaint appellant prayed for $ 2,500 damages on account of unlawful and malicious attachment.

March 6, 1930, respondent demurred, both generally and specially, to appellant's answer and cross-complaint. After the filing of this demurrer negotiations were carried on between the attorneys for the respective parties with a view to settlement, but a settlement could not be reached. Finally the demurrer was set down for hearing on May 23, 1931, and on that date submitted without argument. The demurrer was overruled and respondent given five days within which to answer the cross-complaint; no answer was ever filed thereto.

Immediately after the demurrer was overruled the respondent's attorney wrote him requesting that he call and give him the information necessary for the preparation of an answer. To this letter, and two similar letters containing the same request, respondent's attorney had no reply. In a fourth letter, dated June 23, 1931, respondent's attorney advised him that he was withdrawing as attorney in the case; still respondent paid no heed, so on July 1, 1931, respondent's attorney withdrew. In the meantime the case had been set for trial on July 1, 1931. Immediately after the withdrawal of respondent's attorney, his present attorney, Mr. Horning, requested appellant's attorney to agree to a postponement of the trial until he could examine the pleadings and investigate the facts of the case. The case was then reset for trial July 13, 1931. Two days before the date fixed for the trial respondent resumed negotiations of settlement, but the parties were unable to agree and the case was not tried.

Nothing further was done in the case from July 11, 1931, to March 21, 1932. On the last mentioned date a term of court convened and the case was set for trial. The case was tried before a jury on April 23, 1932, appellant presenting evidence and respondent not appearing either in person or by counsel. The jury rendered a verdict in favor of appellant in the sum of $ 1308.10, on his counterclaim and $ 500 damages on the cross-complaint for unlawful attachment; judgment was entered April 23, 1932.

Ten days after the verdict and judgment were rendered and filed, respondent served and filed his notice of motion for new trial, and his affidavit in support thereof. On May 20, 1932, respondent filed his motion for new trial. Thereafter respondent waived his motion for new trial and nothing further was done in the case until October 22, 1932, when he filed a motion to vacate the judgment, supporting the motion by his own affidavit, and affidavits of his attorney and the deputy clerk of the court. In the affidavit of respondent's attorney it is set forth that he was not employed to represent respondent until after the judgment had been entered; that prior to that time, between the time respondent's first attorney withdrew and the time the case was tried, he had acted merely as an accommodation for respondent, and without fee.

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