State ex rel. Sweeley v. Braun

Decision Date13 February 1941
Docket Number6831
Citation62 Idaho 258,110 P.2d 835
PartiesSTATE ex rel EVERETT M. SWEELEY, Prosecuting Attorney of Twin Falls County, relator, Appellant, v. CATHERINE M. BRAUN and E. L. ROGERS, Respondents
CourtIdaho Supreme Court

JUDGMENT - DEFAULT - NEGLIGENCE OF ATTORNEY - RELIEF FROM DEFAULT - MERITORIOUS DEFENSE - INTOXICATING LIQUOR - PUBLIC NUISANCE - ABATEMENT - APPEARANCE.

1. Under statute providing that when any judgment, order, or proceeding is taken against a party otherwise without default, through the neglect or failure of his attorney to file or serve any paper within required time, judge "shall" set aside such judgment, order, or proceeding, the neglect of the attorney in causing or permitting the default is a mandatory excuse. (I. C. A., sec 5-905.)

2. A default judgment will not be set aside in accordance with statute, even though the neglect be that of the attorney, and not that of the litigant, unless the facts showing a meritorious defense are set forth by way of accompanying answer or affidavit. (I. C. A., sec. 5-905.)

3. Where nonresident filed a demurrer and proffered her answer in suit by prosecuting attorney to abate as a public nuisance a place where alcoholic liquors were illegally kept and sold she made a "general appearance," and thus submitted herself to the court's jurisdiction, and hence her plea of non-notification was not a defense. (Sess. Laws, 1939 chap. 222, sec. 1006.)

4. In action by prosecuting attorney against owner of premises to abate as a public nuisance a place where alcoholic liquors were illegally kept and sold, owner's plea of ignorance of any illegal acts on the premises was not a defense, in view of fact that the action was a "proceeding in rem" against the property, and that the owner had a remedy under statute. (Sess. Laws, 1939, chap. 222, secs 1006, 1011.)

5. In action by prosecuting attorney to abate as a public nuisance a place where alcoholic liquors were illegally kept and sold, showing of merits by owner of premises was required to set forth the facts of defense, so that the trial court in the first instance, and the appellate court in the second instance, might determine whether submitted defense was meritorious, and that determination was for the court and not for counsel. (Sess. Laws, 1939, chap. 222.)

6. On appeal from an order setting aside a default judgment against the defendants in action by county attorney to abate as a public nuisance a place where alcoholic liquors were illegally kept and sold, alleged defenses set out in defendants' brief were of no avail and could not take the place of an answer or affidavit of merits to justify setting aside of default judgment. (Sess. Laws, 1939, chap. 222; I. C. A., sec. 5-905.)

7. Default judgment against defendants in action by prosecuting attorney to abate as a public nuisance a place where alcoholic liquors were illegally kept and sold should not have been set aside on ground of excusable fault and neglect of defendants' attorney in filing answers in time, where no facts constituting a defense on the merits were presented. (Sess. Laws, 1939, chap. 222; I. C. A., sec. 5-905.)

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Appeal from an order setting aside a default and judgment against respondents. Reversed and remanded with directions to reinstate the original judgment.

Reversed and remanded with directions. Costs to appellant.

Everett M. Sweeley, for Appellant.

Where the attorney fails or neglects to act by reason of inadvertence, misunderstanding or excusable negligence, the statute, 5-905, applies, but not when his omission is deliberate or wholly inexcusable, or when it is with the knowledge, express or implied, of the client. (Delwo v. Petersen, 34 Idaho 697; Wagner v. Mower, 41 Idaho 380; Mason v. Pelkes, 57 Idaho 10; Kingsbury v. Brown, 60 Idaho 464.)

Where an Answer is proffered, it must state a meritorious defense, and the Court will examine it to determine whether a good and meritorious defense appears. (C. W. & M. Co. v. Housman, 38 Idaho 343; Voelmeck v. Northwestern Mutual Life Insurance Co., 60 Idaho 412.)

By his Answer the defendant must show that the judgment against him is probably erroneous, and that if he were permitted to present his case he would be likely to secure a judgment more favorable to his interests. (Council Improvement Co. v. Draper, 16 Idaho 541.)

W. L. Dunn, for Respondents.

It is not the exercise of the court's discretion, rather the court is required to find as to two facts: 1. was the failure the neglect of the respondents' attorney? and 2. were the respondents without default? When these two facts are found in the affirmative then there seems nothing for the court to do but to set aside the default and judgment. (Sec. 5-905, I. C. A.; Weaver v. Rambow, 37 Idaho 615, 217 P. 610; Consolidated W. & M. Co. v. Housman, 38 Idaho 343; Wagner v. Mower, 41 Idaho 380, 237 P. 118.)

GIVENS, J. Budge, C. J., and Morgan and Holden, JJ., concur. AILSHIE, J. (Dissenting).

OPINION

GIVENS, J.

The prosecuting attorney of Twin Falls county instituted this action against Catherine M. Braun as owner of the premises, and E. L. Rogers as operator, to abate under 1939 Sess. Laws, chap. 222, as a public nuisance a place where alcoholic liquors were illegally kept and sold.

Upon respondents' default following due and legal service, overruling of respondents' respective and separate demurrers and failure to plead further within the time granted and after appellant had submitted proof adequately establishing a prima facie case, judgment of closure was entered.

This appeal is from an order setting aside the default because of the claimed excusable fault and neglect of their attorney in failing to file answers in time.

Under sec. 5-905, I. C. A., as amended 1921, the neglect of the attorney in causing or permitting the default is a mandatory excuse. (Brainard v. Coeur d' Alene Antimony Mining Co., 35 Idaho 742, 208 P. 855; Wagner v. Mower, 41 Idaho 380, 237 P. 118; Miller v. Brinkman, 48 Idaho 232, 281 P. 372; Kivett v. Crouch, 61 Idaho 536, 104 P.2d 21, at 25.)

While there are vagrant, hypothetical expressions to the effect that under such circumstances no showing of merits is required as a concurrent condition precedent (Weaver v. Rambow, 37 Idaho 645, 217 P. 610), the established and repeated rule is that unless facts showing a meritorious defense are set forth by way of accompanying answer or affidavit it would be idle to set aside the default even though the neglect be that of the attorney, not the litigant, and where defaults have been set aside there have been proffered defenses. (Brainard v. Coeur d' Alene Antimony Mining Co., supra; Consolidated W. & M. Co. v. Housman, 38 Idaho 343, 349, 221 P. 143; Wagner v. Mower, supra; Miller v. Brinkman, supra; Voellmeck v. Northwest M. L. Ins. Co., 60 Idaho 412, 92 P.2d 1076; Beltran v. Roll, (Ariz.) 7 P.2d 248.)

Respondent Braun's answer admits she is a nonresident of the state. By filing her demurrer and proffering her answer she appeared generally and thus has submitted herself to the jurisdiction of the court. (Wayne v. Alspach, 20 Idaho 144, 149, 116 P. 1033; Central Deep Creek Orchard Co. v. C. C. Taft Co., 34 Idaho 458, 202 P. 1062; Elliott & Healy v. Wirth, 34 Idaho 797, 198 P. 757; Armitage v. Horseshoe Bend Co., 35 Idaho 179, 204 P. 1073; Willman v. Friedman, 4 Idaho 209, 38 P. 937, 95 Am. St. Rep. 59; McDonald v. McDonald, 55 Idaho 102, 39 P.2d 293; Newman v. Cheesman Automobile Co., 33 Idaho 685, 197 P. 826; Pingree Cattle Loan Co. v. C. J. Webb & Co., 36 Idaho 442, 211 P. 556; Treinies v. Sunshine Mining Co., 99 F.2d 651, 308 U.S. 66, 84 L.Ed. 85, 60 S.Ct. 44; Poage v. Co-operative Pub. Co., 57 Idaho 561, 66 P.2d 1119, 110 A. L. R. 1322.) Hence her plea of non-notification under sec. 1006, chap. 222, 1939 Sess. Laws, p. 482 (other than by summons), is not now a defense.

Her main plea is that of ignorance of any illegal acts. This is not a defense against abatement proceedings of a liquor nuisance, because it is a proceeding in rem against the property. (State ex rel Eubanks v. Dick, (Kan.) 92 P.2d 92; Lindsley v. Werner, (Colo.) 283 P. 534; Holmes v. United States, 269 F. 489, 12 A. L. R. 427.) Also because the owner has a remedy under the statute. (Sec. 1011, chap. 222, 1939 Sess. Laws, p. 483; Gaskins v. People, (Colo.) 272 P. 662, 62 A. L. R. 693; United States v. Brown, 31 F.2d 307; Hill v. United States, 44 F.2d 889; United States v. All Buildings, etc., 28 F.2d 774.)

Respondent Rogers' answer contained only specific denials, no affirmative showing of any defense. (Harr v. Kight, 18 Idaho 53, 108 P. 539.) The showing of merits must set forth the facts of defense so the trial court in the first instance and the appellate court in the second may determine whether the submitted defense is meritorious. This is for the court, not counsel or his attorney, to decide. (Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Beck v. Lavin, 15 Idaho 363, 367, 97 P. 1028; Harr v. Knight, supra; Parsons v. Wrble, 19 Idaho 619, 115 P. 8, 13; Hall v. Whittier, 20 Idaho 120, 127, 116 P. 1031; Miller v. Brinkman, supra; Voellmeck v. Northwest M. L. Ins. Co., supra; Beltran v. Roll, supra; Thompson v. Caddo County Bank, (Okla.) 82 P. 927; Lindsey v. Goodman, (Okla.) 157 P. 344; Dana v. Thaw, 107 N.Y.S. 870; Sandowitz v. Duane, 62 N.Y.S. 744; Black v. NewYork Life Ins. Co., 126 N.Y.S. 334.)

Claimed defenses bruited in respondents' brief are of no avail and cannot take the place of an answer or affidavit of merits.

No facts constituting a defense having been presented by respondents the default...

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