Stanton-Thompson Co. v. Crane
| Decision Date | 16 December 1897 |
| Docket Number | 1,511. |
| Citation | 51 P. 116,24 Nev. 171 |
| Parties | STANTON-THOMPSON CO. v. CRANE et al. |
| Court | Nevada Supreme Court |
Appeal from district court, Washoe county; A. E. Cheney, Judge.
Action by the Stanton-Thompson Company against E. Crane and others to set aside certain conveyances by E. Crane to his daughters, defendants Amelia H. Howard and A. G. Stiles, as in fraud of creditors, in which judgment was rendered against all the defendants by default. Afterwards defendants Howard and Stiles filed a motion to set aside and vacate the judgment, and for leave to answer and defend, on the ground that no copy of the complaint and summons had been served on them, and that they had never employed or authorized any attorney to appear for them, or entered any appearance in said case. From an order permitting said defendants to answer to the merits upon filing a bond for the payment to plaintiff of the costs and damages, if any, sustained by reason of a trial, in the event that it should finally recover judgment against such defendants, plaintiff appeals. Affirmed.
Trenmor Coffin, for appellant.
Wren & Julien, for respondents.
This suit was instituted in May, 1894, to set aside certain conveyances of real estate alleged to have been made by E Crane to his daughters, Amelia H. Howard and A. G. Stiles for the purpose of defrauding creditors. The defendants E Crane and Mary E. Crane were duly served with summons, and appeared to the action by attorney, and demurred to the complaint, which demurrer was subsequently overruled, and time given in which to answer. On the 28th day of January 1897, R. M. Clarke, who had been employed as the attorney for the respondents Stiles and Howard by E. O. Crane, their brother, entered an appearance and waiver of summons, in writing, for them. It further appears that Mr. Clarke filed a demurrer to the complaint on behalf of the respondents, which was subsequently overruled by the court, and time was given to answer. No answer having been filed in the action, default was duly entered therein against all the defendants on the 18th day of February, 1897; and judgment was duly given in said action against all the defendants on the 20th day of February, 1897. On the 27th day of March, 1897, the property described in the complaint was sold by the sheriff of Washoe county pursuant to said judgment and decree. On the day of sale the respondents Stiles and Howard served notice upon the sheriff of Washoe county and the appellants, to the effect that they were the owners in fee of certain portions of the land mentioned in the complaint and decree, which was about to be sold thereunder, and that they had never had any notice of any suit pending against them by Stanton, Thompson & Co., and that they had never appeared in any such action, nor authorized any one to appear in their behalf. On the 10th day of August, 1897, the respondents served a notice of motion, to be heard on the 18th day of August, 1897, to set aside and vacate the judgment and decree of the court entered against them by default, and for leave to answer and defend therein for the reason that no copy of the complaint and summons had ever been served upon said respondents, and for the further reason that they had never employed nor authorized any attorney to appear for them, and had never entered any appearance in said cause, and had no knowledge that said cause was pending in said court until after the judgment and decree had been entered. The respondents filed their separate affidavits on the 9th day of August, 1897, in support of said motion, in each of which it was alleged that respondents were married women, and residents of the state of California; that there had never been any service upon either of the respondents of the summons and copy of the complaint; and that neither had ever employed or authorized any attorney to enter an appearance in said cause, or otherwise, or to act for them, in any manner or matter, as their attorney in said cause. These affidavits further set up facts which, if true, show a meritorious defense to the action. On the 18th day of August, 1897, the court, on the hearing of the motion of respondents upon the affidavits and oral testimony offered, ordered that the judgment be permitted to stand as security for the plaintiffs against any acts of the respondents prejudicial to their rights, pending a trial of the cause upon its merits, and that the respondents Howard and Stiles be allowed to answer in said cause to the merits, upon filing a sufficient undertaking, conditioned for the payment to the appellants of the costs and damages they might sustain by reason of a trial of said cause, in the event the appellants should finally recover judgment against them. From this order the appeal has been taken.
Testimony was offered on the hearing of the motion relative to the authority of Mr. Clarke to appear for the respondents in said action, which is, on some points, conflicting. A careful review of such testimony conclusively shows that Gen. Clarke was employed by E. O. Crane, the brother of the respondents to enter their appearance in said action. We are also of the opinion that the testimony shows that the respondents had never authorized such employment. Considerable testimony was offered with respect to an agreement regarding this action, made between counsel for appellants and Gen. Clarke, growing out of an action pending in the United States circuit court, wherein the appellants were plaintiffs and E. Crane and others were defendants, involving the same matters, but to which action these respondents were not parties. It is not necessary that this agreement should be considered, in determining this case, for the reason that the same was never reduced to writing, nor entered of record on the minutes of the court, as required by the rules and practice of the court. It is contended on behalf of the appellants that the action of the lower court in this matter is erroneous, for the reasons: First, that there is no showing on the part of the respondents that Gen. Clarke, who appeared for them, was insolvent, or unable to respond in damages, or that there was any fraud or collusion between appellants and said attorney; second, that the respondents have not shown sufficient diligence to entitle them to the relief obtained; third, that it was error to allow the respondents to answer to the merits, without imposing as a condition the payment of the costs that had been incurred prior to the date of the order. Upon the other hand, counsel for the respondents...
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Deros v. Stern
...in the action through counsel, will be entertained if a timely and appropriate post-judgment motion is filed. Stanton-Thompson Co. v. Crane, 24 Nev. 171, 51 P. 116 (1897). 2 Fairness demands that the defendant be afforded his day in court. It is equally apparent, however, that the plaintiff......
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Bowman v. Bowman
... ... In this ... respect this court seems to have already taken the same view ... of the statute that we do. In Stanton-Thompson Co. v ... Crane, 24 Nev. 171, 181, 51 P. 116, 118, the court said: ... "We ... must hold that under the last clause of section ... ...
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Nahas v. Nahas
... ... Stanton-Thompson Co. v. Crane, 24 Nev. 171, 181, 51 ... P. 116, 118, which we believe is pertinent here: "We ... must also hold that under the last clause of ... ...
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Rahn v. Searchlight Mercantile Co.
... ... Collier v. Falk, 66 Ala. 223; 2 Ency. Pl. & Prac. p ... Defendant ... places some reliance upon the case of Stanton-Thompson ... Co. v. Crane, 24 Nev. 171, 51 P. 116, but it is not in ... point. The attorney who entered the appearance of the ... respondent in that case ... ...