Utah Commercial & Savings Bank v. Trumbo

• Decision Date: 30 June 1898
• Docket Number: 939
• Citation: 17 Utah 198,53 P. 1033
• Court: Utah Supreme Court
• Parties: THE UTAH COMMERCIAL AND SAVINGS BANK, RESPONDENT, v. ISAAC TRUMBO, APPELLANT

53 P. 1033

17 Utah 198

THE UTAH COMMERCIAL AND SAVINGS BANK, RESPONDENT, v. ISAAC TRUMBO, APPELLANT

No. 939

Supreme Court of Utah

June 30, 1898

Appeal from district court, Third district; A. N. Cherry, Judge.

Action by the Utah Commercial & Savings Bank against Isaac Trumbo. A judgment by default was entered, and a motion to set it aside denied. Defendant appeals.

Reversed and remanded.

Powers Straup & Lippman, for appellant.

C. W Morse, Moyle, Zane & Costigan, for respondent.

This action was brought to recover a certain sum of money alleged to be due on a promissory note. The attorneys for the defendant having previously withdrawn from the case, and no answer having been filed, nor any one appearing for him when time to answer expired, judgment was entered against him in the sum of $ 3,237.74 and $ 100 attorney's fee and costs. Afterwards a motion was made to set aside the default, and permit the defendant to file an answer and cross complaint. This motion was denied. In the complaint it was alleged substantially, that on July 6, 1896, the defendant executed to the plaintiff bank his promissory note for $ 4,000, to bear interest at the rate of 10 per cent per annum until paid; that to secure its payment, the defendant delivered and pledged to the bank a certain note and mortgage, executed by William C. Jennings and Isaac Jennings, and "by the terms of said note" authorized the bank, if the same should not be paid at maturity thereof, to sell the collateral "at public or private sale," and apply the proceeds to the payment of said note; that the note was not paid when due; that then the bank, in pursuance of the authority conferred by the terms of the note, "after having given due notice to the defendant of the time and place of sale, sold said collaterals on the 28th day of January, 1897, and realized from such sale the sum of $ 1,000, which sum was credited upon said note;" and that in addition to the said $ 1,000 there was paid on the note $ 45.39, and the interest to January 25, 1897, leaving "due and unpaid thereon" $ 2,954.61 principal and $ 196.96 interest. Judgment is prayed for accordingly. This complaint was filed on September 25, 1897, and summons issued on the same day, and service made two days later by leaving the papers with defendant's wife at his residence. She notified him, and he directed her to employ, as attorneys to defend the action, Messrs. Brown & Henderson. They thereafter appearing specially for the purpose, moved to quash and dismiss the service of summons, which motion was overruled November 3, 1897, and the defendant given ten days to answer. This action of the court is also assigned as error. On November 10 his attorneys demurred generally and specially to the complaint. On November 12 his attorneys wrote defendant directing the letter to San Francisco, Cal., informing him what had been done in the case, but it appears that the defendant, through absence from the city, failed to receive the letter. Not receiving a reply, his attorneys again wrote him on December 2, saying, "We did not hear from you in reference to your case, and unless we do by return mail we shall withdraw our appearance." This letter was also addressed to San Francisco, and on December 7 the defendant wired his attorneys from Ogleby, Cal., as follows: "The only letter I have received is December 2. See Powers." On December 11 his attorneys again wrote him, stating what they had done, and saying, "If you desire us to attend to that matter, you must send us $ 100 and that must be done by return mail." This letter w as also directed to San Francisco, but it appears that the defendant had gone to his mine, in the southern part of California, away from railroad and mail facilities, and did not return to San Francisco until about December 20, and that he never received the letter. On December 29, 1897, his attorneys, Messrs. Brown & Henderson, withdrew from the case. Thereafter the demurrer was overruled, and the defendant given five days to answer; and on January 12, 1898, no answer having been filed, judgment was entered against him by default in the sum of $ 3,237.74 and $ 100 attorney's fee and costs. It appears from the record that the defendant had no notice of the withdrawal of his attorneys, nor of the overruling of the demurrer, nor of the entering of judgment against him, until after the judgment had been rendered; and that during that time he was also absent from San Francisco. Concerning the withdrawal of Messrs. Brown & Henderson from the case, the witness Brown testified that neither he nor his firm notified defendant that they "had withdrawn from the case at the time the notice of withdrawal was filed, or at any other time." Immediately upon learning of the judgment by default, the defendant telegraphed another attorney, O. W. Powers, to appear and obtain an order vacating the judgment, and permitting him to plead to the merits. Thereupon a motion was made to set aside the default, vacate the judgment, and permit the defendant to file an answer and cross complaint in the cause, copies of which, with notice of the motion, specifying that the time for hearing would be January 31, 1898, and affidavits in support of the motion, were properly served. The motion and application to be permitted to plead to the merits were denied on March 5, 1898. From the affidavits filed in support of the motion it appears that during all of these proceedings the defendant was continuously absent from the state of Utah, and attending to business interests in the state of California. The defendant, in his affidavit, stated that he had been informed, and verily believed, that his attorneys had entered his appearance in the action, and believed that they had filed the proper pleadings to protect his rights; and that he had no notice of their withdrawal from the case, or of the entry of judgment by default, until after the judgment had been taken against him. It further appears by affidavit that when he learned of the judgment he telegraphed his attorney, O. W. Powers, on January 15, 1898, from San Francisco, as follows: "Haven't you been attending to that bank case? Reports here that judgment went by default. Attend to it at once." It appears he had previously asked him to assist in the case when it should come to trial. It is shown by affidavit that the judgment was a surprise to the defendant; that his application to vacate it was based upon the mistake and excusable neglect of the defendant; that after the defendant had fully and fairly stated the facts to his attorney, he was advised by him that he had a good and meritorious defense upon the merits; and that such facts were stated in the answer tendered for filing in the cause, which answer was one of the pleadings on which his motion to vacate and set aside was based. The answer and cross complaint are verified, and the defendant in the answer admits that he executed and delivered the $ 4,000 note to the plaintiff, and that he delivered to it, as collateral security, the note and mortgage executed by William C. and Isaac Jennings, but denies that, upon maturity of his note, or at any other time, the plaintiff was, by the terms thereof, or at all, authorized to sell the collateral security, at public or private sale, or in any manner set forth in the complaint, or that he had any notice of sale, or ever ratified or confirmed it; and charges the plaintiff with having received a larger sum than $ 1,000 when the same was sold. By way of cross complaint it was averred in the answer that the collateral security consisted of a promissory note for the sum of $ 15,000, secured by a mortgage, in the usual form, on valuable real estate situate in Salt Lake City, the note bearing interest at 9 per cent per annum, executed and delivered to defendant by William C. and Isaac Jennings for a good and valuable consideration, dated January 6, 1890, and payable one year after date. The mortgage was executed by the same parties, at the same time, and delivered to the defendant. The interest on this note and mortgage had been paid in full to April 3, 1895, and the last payment of interest, being a partial payment, was made on December 21, 1895. On...