Simons v. Keller

• Decision Date: 21 March 1960
• Docket Number: No. 10022,10022
• Citation: 137 Mont. 52,350 P.2d 366
• Parties: Roy SIMONS, Plaintiff and Appellant, v. Herman M. KELLER, Defendant and Respondent.
• Court: Montana Supreme Court

Page 366

350 P.2d 366

137 Mont. 52

Roy SIMONS, Plaintiff and Appellant, v. Herman M. KELLER, Defendant and Respondent.

No. 10022.

Supreme Court of Montana.

Submitted Feb. 9, 1960.

Decided March 21, 1960.

Harold F. Smith, Kalispell, argued orally for appellant.

Measure & Salansky, James M. Salansky, Kalispell, for respondent. James M. Salansky argued orally.

LESTER H. LOBLE, District Judge, sitting in place of BOTTOMLY, Justice, delivered the Opinion of the Court.

This is an appeal from an order granting a motion to set aside a default judgment under the provisions of section 93-3905, R.C.M.1947. Plaintiff entered defendant's default just three days after his time for appearance had expired and without notice to tim.

On October 20, 1958, plaintiff filed a complaint in the district court of the eleventh judicial district, in and for the County of Flathead, wherein it was alleged, in substance, that defendant offered to sell to the plaintiff a tractor which defendant fraudulently represented was his own property when he was aware that the tractor was actually the property of one Burl Drollinger and mortgaged to one John Slack; that plaintiff relied on defendant's representations of ownership and agreed to purchase the same and thereafter paid the sum of $1,610; that defendant refused to execute a bill of sale therefor; and that on September 6, 1958, the mortgagee, John Slack, repossessed the tractor, causing damage to the plaintiff in the sums of $1,610, the purchase price paid; $340 expended as improvements on the tractor; and $3,500 for loss of use.

Complaint and summons were served on defendant on October 20, 1958. Defendant failed to make an appearance within twenty days and default was entered on November 12, 1958. Trial was had on the 13th of November wherein no appearance was made on behalf of defendant, and on November 14, 1958, judgment was entered for plaintiff.

On November 25, 1958, defendant filed a motion to vacate the judgment on the grounds that the judgment was entered through his mistake, surprise, inadvertence, and excusable neglect. Along with the motion to vacate, defendant filed his affidavit of merits wherein he set forth the facts which purportedly show his mistake, surprise, inadvertence and excusable neglect, and also which purport to constitute his defense to plaintiff's action.

Defendant filed his counter-affidavit, in opposition to plaintiff's motion. Hearing was had on the motion on December 2, 1958, and on December 17, 1958, defendant's motion to vacate the judgment was granted. From the order granting the motion, plaintiff appeals.

The only question involved here is whether the trial court erred in vacating the default judgment taken against the defendant.

Section 93-3905, R.C.M.1947, which is the statutory authority for the motion to vacate a default judgment provides, in part, that the 'court * * * may, also, 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; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.'

In Cure v. Southwick, Mont., 349 P.2d 575, 580, the principles pertinent to the application of this statute were stated. This court there 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 a 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 conclusions, the doubt should be resolved in favor of the motion. Worstell v. Devine, Mont. 1960, 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; Nash v. Treat, 45 Mont. 250, 122 P. 745.'

The plaintiff urges that the vacating of the judgment was error in that the neglect shown by defendant was not excusable under section 93-3905, R.C.M.1947, and that defendant's affidavit in support of his motion did not contain facts constituting a defense nor did he submit a proposed answer containing the same.

In his affidavit of merits, defendant stated that he had previously discussed the matter with the plaintiff and plaintiff's attorney, Mr. Smith, and the mortgagee, Mr. Slack, and he was of the opinion that an attempt was being made by...