Stenner v. Colorado-Montana Mines Ass'n

• Decision Date: 13 June 1944
• Docket Number: 8502.
• Citation: Stenner v. Colorado-Montana Mines Ass'n, 149 P.2d 546, 116 Mont. 261 (Mont. 1944)
• Parties: STENNER v. COLORADO-MONTANA MINES ASS'N.
• Court: Montana Supreme Court

149 P.2d 546

116 Mont. 261

STENNER v. COLORADO-MONTANA MINES ASS'N.

No. 8502.

Supreme Court of Montana

June 13, 1944

Appeal from District Court, Fifth District, Madison County; Henry G Rodgers, Judge.

Action by Clarence E. Stenner against Colorado-Montana Mines Association to recover a sum of money claimed to be owing as wages for labor. From an order denying defendant's motion to vacate judgment rendered in favor of plaintiff, defendant appeals.

Reversed with direction to vacate judgment.

Stanley R. Foot, of Helena, for appellant.

Frank E. Blair, of Virginia City, and McCaffery & McCaffery, of Butte, for respondent.

ANDERSON Justice.

This is an appeal from an order denying a motion to vacate a judgment.

The action was brought to recover a sum of money claimed to be owing as wages for labor. The debt was denied by defendant's answer. The case was at issue and was set for trial on the regular term trial calendar to be heard on October 13, 1942, at 9:30 a.m. There were eight other cases on the calendar in consecutive order for trial before this case. The case of Couse v. Dietz, the one immediately preceding, was reached and came on for trial on October 12th with a jury in attendance. Counsel for the defendant in the case here on appeal was in touch with the court to keep informed of the progress of the calendar, and was ready and intended to be in attendance with witnesses upon the conclusion of the trial of the preceding case. He had communicated by telephone with plaintiff's counsel and with the trial judge a few days before and was told the case would not be reached on the day set. The judge told him if it was reached on the following day, the 14th, and he was not then there, the case would not be called that day until his arrival.

Counsel for defendant and witnesses arrived in court at 2 o'clock in the afternoon of October 14th. The trial of the Couse case had not yet been completed. Counsel was then informed that his case, the case here on appeal, had been disposed of in the forenoon of that day. The court had recessed the trial of the Couse case at 11 o'clock and, without any notice to defendant, had advanced its case on the calendar and called it for trial. Plaintiff and his counsel were there and ready to proceed. No one was there for defendant. The court heard plaintiff's proof and gave judgment for the amount sued for, $1,657 and interest and costs. An affidavit by one of plaintiff's attorneys states what was done, as follows:

"At about eleven o'clock A.M. the Honorable Henry G Rodgers, Judge of the above styled District Court, called said McCaffery (plaintiff's counsel) to his position on the bench, informed him in affiant's presence that he had not heard from the defendants or their attorney and that he proposed to call the case up for trial so that he could let the jury go home. The Clerk called the case in open Court three times, but none of the defendants or their attorney responded. The Court then proceeded to hear the proof upon the issues joined by the pleadings without a jury, and at the conclusion rendered judgment in favor of the plaintiff."

Defendant's counsel, upon gaining the attention of the court, asked leave to make motion in open ...