Sewell v. Beatrice Foods Co.

• Decision Date: 28 April 1965
• Docket Number: No. 10783,10783
• Citation: 400 P.2d 892,145 Mont. 337
• Parties: Ray SEWELL, Plaintiff and Respondent, v. BEATRICE FOODS CO., a Corporation, and Eddie O. Hofland, Defendants and Appellants.
• Court: Montana Supreme Court

Page 892

400 P.2d 892

145 Mont. 337

Ray SEWELL, Plaintiff and Respondent, v. BEATRICE FOODS CO., a Corporation, and Eddie O. Hofland Defendants and Appellants.

No. 10783.

Supreme Court of Montana.

Submitted Nov. 9, 1964.

Decided March 30, 1965.

Rehearing Denied April 28, 1965.

Loble & Picotte, Henry Loble (argued), Helena, for appellants.

Rankin & Acher, Wellington D. Rankin (argued), Arthur Acher (argued), Helena, for respondent.

DOYLE, Justice.

This is an appeal by the appellant, Beatrice Foods Co., from a denial by the district court of a motion to set aside a default judgment entered on July 12, 1963, by Judge Victor H. Fall in the district court of Lewis and Clark County, to permit the appellant to file its answer and defend on the merits and present its defense to the action.

The judgment is in the sum of $15,000 resulting from injuries suffered by the respondent, Ray Sewell, who was a guest passenger in a truck, the property of the appellant, Beatrice Foods Co., which truck driven by an employee, Eddie O. Hofland, of the appellant, was overturned seventeen miles south of the town of Cascade on July 13, 1956.

The respondent filed his complaint in the district court of Lewis and Clark County on November 13, 1956.

The complaint alleged several acts of negligence on the part of the driver of the truck, Eddie O. Hofland, including intoxication, which resulted in personal injuries suffered by the respondent.

The prayer was for the sum of $35,000.

Summons was issued on the same date, November 13, 1956, and the complaint and summons were alleged to have been served upon the appellant, Beatrice Foods Co., by a deputy sheriff, R. J. Burley of Cascade County on December 4, 1956, by delivering summons and complaint to Paul McClure as District Manager for the appellant.

The deputy sheriff also personally served the summons and complaint on Eddie O. Hofland on December 8, 1956. The deputy sheriff certified the service in each instance and the return of the service was filed on March 14, 1957.

On March 14, 1957, counsel for plaintiff filed a praecipe for default in the district court and requested entry of the default of appellants, which praecipe was accompanied by the affidavit of one of respondent's counsel.

On July 12, 1963, some seven years after the accident respondent obtained a default judgment against the appellant corporation and Hofland in the sum of $15,000 with interest at six percent and costs in the amount of $11,50.

On October 7, 1963, attorneys for the respondent requested an execution which was issued and on October 8, 1963, respondent attempted to levy on appellant's bank account in Great Falls, Montana. The record indicates that this was the appellant's first knowledge of the litigation.

On October 10, 1963, appellant Beatrice Foods filed with the lower court a motion to set aside the default and default judgment, together with a notice of motion and supported by an affidavit of Paul McClure as district manager for the appellant. Also filed was a proposed answer of the appellant.

On December 18, 1963, hearing was had on appellant's motion to set aside the default and default judgment. Testimony was adduced from Mr. McClure for the appellant and Ray Sewell, respondent and Deputy Sheriff R. J. Burley testified for the respondent. Exhibits were offered and admitted.

On January 2, 1964, the trial court made an order denying the motion of the appellant, Beatrice Foods Co., to set aside the judgment. From this order, Beatrice Foods Co. has appealed.

Appellant cites one specification of error, namely, that the trial court erred in denying the motion of the appellant to set aside the default and default judgment of July 12, 1963, and in failing to permit appellant to file its answer and to appear and defend the action.

This court has many times enunciated the rule relating to relieving a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or other excusable neglect. R.C.M.1947, Sec 93-3905, repealed by Chapter 13, Laws of 1964.

By the adoption of the Montana Rules of Civil Procedure, the prior decisions of this court were not abandoned. Hence, the rule was and is as stated in White v. Connor, 138 Mont. 1, 15, 354 P.2d 722, where quoting from Cure v. Southwick, 137 Mont. 1, 349 P.2d 575, this court said: "Also, this court has declared many times that default judgments are not favored; that although slight abuse of discretion in refusing to set aside a default judgment is sufficient to justify a reversal, only in exceptional cases will this court disturb the action of the trial court in reopening a default; that when a motion is made and is supported by a showing which leaves the court in doubt or upon which reasonable minds might reach different condlusions, the doubt should be resolved in favor of the motion. Worstell v. DeVine, 1960, 135 Mont. 1, 335 P.2d 305; Holen v. Phelps, 131 Mont. 146, 308 P.2d 624; Waggoner v. Glacier Colony of Hutterites, 127 Mont. 140, 258 P.2d 1162."

From the year 1888, when this court ruled in Briscoe v. McCaffery, 8 Mont. 336, 20 P. 691, there has been and still is complete unanimity in the decisions of this court that a motion to set aside a default judgment must contain facts so that the court may resolve the question as to whether mistake, inadvertence, surprise or excusable neglect is the fact in contemplation of the statue. The basic and fundamental duty of the court is to aid the furtherance of justice and that every litigant shall be permitted to enjoy his day in court. This is the principle that motivates the liberal construction of this rule of law, and further frowns on default judgments.

As is observed in Schalk v. Bresnahan, 138 Mont. 129, 132, 354 P.2d 735; 'In recent cases Worstell v. DeVine, 135 Mont. 1, 335 P.2d 305; Cure v. Southwick , 349 P.2d 575; and Simons v. Keller , 350 P.2d 366, this court has gone a long way in permitting the opening of defaults * * *.'

With these rules concerning opening of default judgment in mind, we look to the record here. The sheriff's return shows service. The defendant's agent testifies positively and gives supporting details.

R.C.M.1947, Sec. 16-2707, provides: 'The return of the sheriff, upon process or notices, is prima facie evidence of the facts in such return stated.'

In Husky Hi Power, Inc. v. Schmidt, 140 Mont. 353, 356, 372 P.2d 142, this court said:

'This court has held that a sheriff's return may be overcome by other evidence. State ex rel. Merrell v. District Court, 72 Mont. 77, 231 P. 1107; Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375, 278 P. 832, 65 A.L.R. 968; Silfvast v. Asplund, 99 Mont. 152, 42 P.2d 452.

'In a consideration of the proof before the court in support of the motion it certainly should be clear, unequivocal and convincing in order to set aside a return and overcome its statements and recitals. See 72 C.J.S. Process Sec. 102b, p. 1144. * * *

'The burden of proof was upon the movant. The former sheriff's affidavit did not contain even the barest excuse, no explanation, no suggestion of any mistake or omission in the return which he executed and filed. This type of proof is not the clear, unequivocal and convicing, evidence necessary to set aside a return executed by a constitutional officer in the course of his official duties. Neither do the other affidavits filed by the defendants furnish the degree of proof.'

Thus, it is seen that to set aside a return and overcome its statements and recitals requires more than a little proof, it must be clear, unequivocal and convincing.

Standing alone, the most positive assertion by a person that he was not served would not suffice. But we predicate our discussion upon the facts here, where a long, unexplained delay in asserting a legal right, viz., the complaint for damages, amounts to what under other circumstances would invoke the doctrines of laches or estoppel. It is interesting to note, that although appellant's brief asserts that the unexplained delay gives rise to evidence against the justice of the right asserted (as stated in 30 C.J.S. Equity Sec. 166), respondent's brief does not answer nor did his oral argument.

Here, even the sheriff's return, relied upon for its prima facie presumption of correctness, was not filed as required by R.C.M.1947, Sec. 93-3020, within fifteen days, but rather was filed March 14, 1957, after service allegedly had on December 4 and December 8, 1956.

Prior to the adoption of the Rules of Civil Procedure, R.C.M.1947, Sec....