Shaffroth v. Lamere

• Decision Date: 23 February 1937
• Docket Number: 7608.
• Citation: 65 P.2d 610,104 Mont. 175
• Parties: SHAFFROTH et al. v. LAMERE, Justice of Peace, et al.
• Court: Montana Supreme Court

65 P.2d 610

104 Mont. 175

SHAFFROTH et al. v. LAMERE, Justice of Peace, et al.

No. 7608.

Supreme Court of Montana

February 23, 1937

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Proceeding by H. C. Shaffroth and another against P. E. Lamere, Justice of the Peace, and another for a writ of review to annul a default judgment. From a judgment of dismissal, relators appeal.

Affirmed.

Molumby Busha & Greenan, LaRue Smith, Swanberg & Swanberg, John McKenzie, and H. C. Hall, all of Great Falls, for appellants.

W. P Costello, of Great Falls, for respondents.

ANDERSON Justice.

Relators filed an application in the district court for a writ of review seeking to annul a default judgment of a justice's court in Great Falls township in Cascade county. A writ of review was issued to which the justice made his return certifying the record, and filed a motion to quash upon the ground that the proceedings were barred by the provisions of sections 9041 and 9066 of the Revised Codes. The motion was sustained by the district court on the ground that the relators were guilty of laches, and judgment of dismissal was entered. The appeal is from this judgment.

It appears from the record that Frank M. Wallace Agency, Inc. brought action in the justice court of P. E. Lamere on February 7, 1930, on which date a summons was issued. The constable making return on the summons certified that he received it on the 7th and 8th day of February, 1930, and personally served the same on the defendants--naming each of them--on the _______ day of February of that year. The return bore date of the 8th day of February. The summons was returnable on February 13 at 10 o'clock in the forenoon. The justice's docket discloses that the return was made to him on February 7, 1930.

The complaint was in the following language, omitting the names of the parties: "For balance owing on assigned note from the Labor National Bank of Great Falls, Montana, dated at Great Falls, Montana, March 11th, 1929, in the sum of $300.00, upon which the sum of $25.00 was paid on April 26th 1929, and $32.00 paid on July 3d, 1929, and $30.00 paid on October 21st, 1929, with interest at 8% from date, and upon which there now remains due and unpaid a balance of (including interest, at 8% to date), $230.75 and a reasonable attorney's fee of $25.00. The above note is long past due and assigned to plaintiff before the filing of this action." The docket of the justice discloses that F. M. Wallace appeared for the plaintiff on the return day and at the hour of 11 o'clock plaintiff "asked for summons by default." The default was entered; Wallace was sworn and testified, and judgment was rendered for $230.75, attorney's fee of $25, and costs in the sum of $4.25.

In the application for the writ of review it is alleged that the Frank M. Wallace Agency, Inc., the plaintiff in the justice court proceeding, was a corporation not authorized to engage in the practice of law, and that Frank M. Wallace, who appeared in the justice court, is an officer of the corporation who was not admitted to practice law. The relators here contend that the judgment and the proceedings in the justice court leading up to the judgment, disclose that the judgment is void on its face upon three grounds, namely: (1) That the return of the summons and the justice's record thereof were insufficient to invest the court with jurisdiction of the persons of the defendants; (2) that the complaint was insufficient to state a cause of action warranting the court to grant any relief to the plaintiff in the justice court; and (3) by reason of the unlawful practice of law by plaintiff and its agent Wallace in the justice court, the judgment was void.

The respondents filed no brief, and no argument was made on their behalf. Relators contend that the trial court was in error in dismissing the proceeding upon the ground of laches, basing their argument upon the decision of this court in the case of State ex rel. Smith v. District Court, 55 Mont. 602, 179 P. 831, and State ex rel. Happel v. District Court, 38 Mont. 166, 99 P. 291, 35 L.R.A. (N.S.) 1098, 129 Am.St.Rep. 636, wherein it was said that a judgment void on its face may be vacated at any time, and proceed to argue that, by reason of these judicial declarations, laches in a proceeding such as this and likewise the statute of limitations are without application.

We have frequently observed that general expressions found in the opinions of this court are to be construed in the light of the facts under consideration. State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 P.2d 39; Williams v. Anaconda Copper Min. Co., 96 Mont. 204, 29 P.2d 649. In the Smith Case, supra, no question of laches or the statute of limitations was raised. In the Happel Case the court used similar language in commenting on the difference between the mode of attack on a judgment void on its face, and one not so disclosing its invalidity. In neither case did the court consider, nor did it have before it, facts making it necessary for a court to consider the effect of laches or the statute of limitations.

It is generally held that where the question is not regulated by statute, the writ of review must be applied for within a reasonable time or it will be refused or dismissed if improvidently issued. 11 C.J. 146. The Supreme Court of California quite early held that the lapse of a year was an unreasonable time. Kimple v. Superior Court, 66 Cal 136, 4 P. 1149; Keys v. Board of Supervisors of Marin County, 42 Cal. 252. It will be noted that...