State v. District Court of Second Judicial Dist. in and for Silver Bow County

• Decision Date: 18 November 1912
• Citation: 128 P. 582,46 Mont. 348
• Parties: STATE EX REL. KOHL v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY ET AL.
• Court: Montana Supreme Court

128 P. 582

46 Mont. 348

STATE EX REL. KOHL v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY ET AL.

Supreme Court of Montana

November 18, 1912

Mandamus by the State, on the relation of Gus J. Kohl, against the District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow and John B McClernan, Judge thereof, to compel him to vacate an order refusing to set aside a default judgment against relator and to vacate such judgment. Denied.

Binnard & Rodger, of Butte, for relator.

C. F Kelley, L. O. Evans, and D'Gay Stivers, all of Butte, and W. B. Rodgers, of Anaconda, for respondents.

SMITH J.

Application for a writ of mandate to compel the district court of Silver Bow county and one of its judges to vacate an order heretofore entered refusing to set aside a default and a judgment against the relator, and to enter an order setting aside the default vacating the judgment and dismissing the action.

The relator's affidavit discloses that in 1894 James B Haggin began an action against him and others to quiet title to certain real estate in Silver Bow county. Although relator was duly served with summons on February 20, 1894, he never appeared in the action. On July 5, 1912, the clerk of the district court, on motion of counsel for plaintiff, entered his default, and on the same day the court, also on motion and after a hearing, entered judgment against him in accordance with the prayer of the complaint. On July 22 1912, relator moved the district court to vacate said judgment and default and dismiss the action, which motion was denied. The issue in this court is made by demurrer to the affidavit and a motion to quash the alternative writ heretofore issued.

On the authority of State ex rel. Stiefel v. District Court, 37 Mont. 298, 96 P. 337, it is contended by relator (1) that it was the duty of the clerk to enter the default of the defendant in accordance with the provisions of subdivision 2 of section 6719, Revised Codes, and (2) that thereafter it was the duty of the court to dismiss the action after the expiration of more than six months, by virtue of subdivision 6 of section 6714, Revised Codes.

This case is distinguishable from the Stiefel Case in this: That Stiefel's default was regularly entered, and the court, after the expiration of more than six months from such entry, refused to dismiss the cause as to him; while in the case of Haggin v. Kohl et al., with which we are concerned, no default was entered until immediately prior to the entry of judgment.

We think the learned counsel for the relator has failed to grasp the true significance of subdivision 6 of section 6714 Revised Codes, supra. It reads as follows: "An action may be dismissed or a judgment of nonsuit entered in the following cases: * * * 6. By the court, when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months." It is only after verdict or final submission of a case that it may be dimissed for failure to have judgment entered for more than six months. As was said by Mr. Justice Holloway, for this court, in the Stiefel Case, supra: "The words 'final submission' mean a submission which is equivalent to the return of...