Ticknor v. McGinnis

• Decision Date: 24 November 1920
• Citation: 33 Idaho 308,193 P. 850
• Parties: E. C. TICKNOR, Appellant, v. CHARLES Q. MCGINNIS, Respondent
• Court: Idaho Supreme Court

193 P. 850

33 Idaho 308

E. C. TICKNOR, Appellant, v. CHARLES Q. MCGINNIS, Respondent

Supreme Court of Idaho

November 24, 1920

JUDGMENT BY DEFAULT-MOTION TO VACATE-SUFFICIENCY OF SHOWING-CONTRACTS-CONSIDERATION-COMPROMISE.

1.While the granting or refusing to grant a motion to vacate a judgment and set aside a default, where right to relief is based on the claim that they have been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect, is a matter which rests largely in the discretion of the trial judge, reference is always had in stating that rule to a sound, judicial, reviewable discretion, in the exercise of which courts must bear in mind a judgment is property of which the owner must not be deprived without due process of law, and the mistake or neglect, to be sufficient, must be such as may be expected on the part of a reasonably prudent person situated as was the party against whom the judgment was entered.

2.If a claim is made in good faith for unliquidated damages and is disputed and, by way of compromise, the claimant promises to forbear to sue on it, and the one against whom it is made promises to pay a sum of money in full satisfaction of the claim, the agreement is based on a valuable consideration and may be enforced in an action at law.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County.Hon. Wm. A. Babcock, Judge.

Action on contract.Judgment by default set aside.Order reversed.

Order reversed.Costs awarded to appellant.

Sweeley & Sweeley, for Appellant.

The district court erred in sustaining the motion of defendant to set aside the judgment.There was no sufficient showing of mistake, inadvertence, surprise or excusable neglect on the part of the defendant.The proposed answer of the defendant is not a sufficient showing of merit to constitute a defense to the action.The district court abused its discretion in sustaining the motion.(Harr v. Kight,18 Idaho 53108 P. 539;Hall v. Whittier,20 Idaho 120, 116 P 1031;Vollmer Clearwater Co. v. Grunewald,21 Idaho 777, 124 P. 278;Domer v. Stone,27 Idaho 279, 149 P. 505;Kynaston v. Thorpe,29 Idaho 302, 158 P 790;Valley State Bank v. Post Falls etc. Co.,29 Idaho 587, 161 P. 242.)

Turner K. Hackman, for Respondent.

The allegations of the complaint do not state facts sufficient to constitute a cause of action; therefore, the court acted properly in setting aside the judgment.(1 Page on the Law of Contracts, sec. 512.)

"Judgment by default cannot be rendered upon a complaint which, given every reasonable intendment, does not state facts sufficient to constitute a cause of action."(14 StandardEncy. of Proc. 859.)

"The allegation of material facts, or omission of them, in a complaint constitute a guide for the defendant in determining whether he will answer, appear or suffer default."(Doud etc. Co. v. Duluth etc. Co.,55 Minn. 53, 56 N.W. 463.)

"Where the petition omits the necessary averment to show liability against the defendant, the court may, and should even upon default, refuse to enter judgment."(Bosch v. Kassing,64 Iowa 312, 20 N.W. 454;Choynski v. Cohen,39 Cal. 501, 2 Am. Rep. 476;Abbe v. Marr, 14 Cal. 210.)

The application was addressed to the sound discretion of the court, and a proper showing was made of inadvertence, surprise and excusable negligence sufficient to sustain the allegations of the motion.(Pittock v. Pittock,15 Idaho 426, 98 P. 719;Pease v. County of Kootenai,7 Idaho 735, 65 P. 432;Humphreys v. Idaho Gold Mines etc. Co.,21 Idaho 126, 135, 120 P. 823, 40 L. R. A., N. S., 817;Parsons v. Wrble,19 Idaho 619, 115 P. 8.)

MORGAN, C. J. Rice, J., concurs, Budge, J., concurs in the conclusion.

OPINION

MORGAN, C. J.

Summons and complaint were served on respondent, personally, in Twin Falls county on December 22, 1917.On January 17, 1918, he having failed to appear and answer and the time provided by law and stated in the summons within which to do so having expired, his default and a judgment against him were entered.He moved that the judgment be set aside and for permission to file an answer.The case is here on appeal from an order granting the motion.

After discussing the merits of his proposed defense respondent, in his affidavit filed in support of the motion, alleged as his reason for neglecting to answer that after he was served with summons and complaint he"inquired among his neighbors as to the time of court, and as to the employment of counsel, and that his information was that no term of court would be convened until in the month of May or possibly a special term in the month of February; and that affiant would have ample time, therefore, to employ counsel to prepare for his defense, and that it was his purpose and intent to make a defense by employing counsel; that believing that he was using full diligence, affiant came to Twin Falls and ascertained on the twenty-second day of January, 1918, that default had been entered against him on the seventeenth day of January, 1918, only six days previous to his investigation, and that the term of court had begun on the fourteenth day of January, 1918; that said term had been begun at said time instead of in May, as had theretofore been the case."

The motion was made pursuant to C. S., sec. 6726, wherein it is provided that the court may, in furtherance of justice, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect.

The showing is insufficient to justify the order vacating the judgment and setting aside the default.The summons, a copy of which was delivered to respondent on December 22, 1917 contained this statement for his information and guidance: "And you are hereby directed to appear and answer said complaint within twenty days of the service of this summons; . . . . and you are further notified that unless you so appear and answer said complaint within the time herein specified, the...