Waggoner v. Glacier Colony of Hutterites

Decision Date02 July 1953
Docket NumberNo. 9184,9184
Citation258 P.2d 1162,127 Mont. 140
PartiesWAGGONER v. GLACIER COLONY OF HUTTERITES et al.
CourtMontana Supreme Court

Hoffman & Cure, Great Falls, for appellants. Harvey B. Hoffman, Great Falls, argued the case orally.

Frisbee & Moore, Cut Bank, for respondent. S. S. Frisbee, Cut Bank, argued the case orally.

BOTTOMLY, Justice.

This is an appeal from that certain order made and filed January 14, 1952, denying the motion of the defendant Glacier Colony of Hutterites, an association of persons, for an order vacating and setting aside its default and the judgment entered therein against it and not permitting it to answer and defend the action.

This action was commenced by plaintiff for the purpose of recovering damages of some $51,000 arising out of an automobile accident which is alleged to have occurred February 8, 1951. Complaint was filed September 11, 1951, and together with summons was served on the defendant association September 13, 1951.

Praecipe for default was filed and default of the defendant entered October 4, 1951, and judgment in the sum of $15,974.08 was made and entered October 24, 1951.

November 5, 1951, motion to vacate and set aside the default and judgment so entered, together with the supporting affidavits of John M. Entz and Paul P. Entz, members of the defendant colony, and H. B. Hoffman, their attorney, were filed and defendant's answer tendered for filing.

November 5, 1951, the judge, upon presentation of the motion and said affidavits and tender of an answer and good cause appearing, filed an order staying all proceedings on the judgment or on execution until further order of the court. Thereafter and on stipulation of counsel an order was made setting the hearing on defendant's above motion for November 27, 1951.

November 27, 1951, affidavit of John P. Moore and affidavit of Selden S. Frisbee, with exhibits attached, were filed in opposition to the motion. Hearing was had November 27, 1951, at which testimony was introduced. Thereafter and on January 14, 1952, the court entered an order denying defendant's motion. This appeal is from such order.

The affidavits of John M. Entz and Paul P. Entz recite, inter alia: That on September 13, 1951, the sheriff of Glacier County delivered a copy of the summons and complaint to John M. Entz; that he and other members of the Glacier County colony conferred about the matter; that then he and Paul P. Entz, another member of Glacier colony, and a Mr. O'Haire hurried to the office of Selden S. Frisbee and John P. Moore, in Cut Bank, Montana, the attorneys for the plaintiff in the action; that they were met by John P. Moore; that John M. Entz and Paul P. Entz and Mr. O'Haire then and there informed the said John P. Moore of the fact, as the fact is, that Peter Mandel, the driver of the truck referred to in the plaintiff's complaint, was not at the time of the accident referred to, and never has been a member of the Glacier colony, nor a resident of Glacier County or of Montana; but on the contrary, he was a resident of Alberta Province in Canada and that the truck involved in said accident which the said Peter Mandel was driving was not the property of the Glacier colony, but was the property of Elm Spring colony, a resident of said Province of Alberta; that they then and there informed and stated to said John P. Moore that at the time of said accident, Peter Mandel was a visitor to the Glacier colony and at the time of the accident he was not engaged by Glacier colony or any member thereof, nor was he at the time of the accident engaged in any business of the Glacier colony; that thereupon the said John P. Moore stated to deponents that they could burn the papers that the sheriff had served or throw them in the wastebasket; that he would have to get out other papers or change the papers before he could do anything; that deponents and the Glacier colony put full faith and confidence in said statement made by Mr. Moore, and expected that he would change his suit in accordance with the facts that deponents gave him and that the deponents and Glacier colony were under no responsibility to answer said papers which deponents and Glacier colony considered to be of no force or effect because of said statement by Mr. John P. Moore, and because thereof neither Glacier colony nor anyone acting in its behalf conferred or consulted with any other attorney at law until on or about Saturday, October 27, 1951, when deponents conferred with their attorneys Hoffman and Cure in Great Falls, Montana, who advised deponents and Glacier colony that its default had already been entered against it; that Hoffman and Cure had not seen the complaint in the action or a copy thereof until October 29, 1951; that deponents and Glacier colony were lulled into a sense of security by the statement and representation aforesaid made by said John P. Moore, and but for those statements they would have immediately contacted their said attorneys to appear and answer plaintiff's complaint; that after fully and fairly stating the facts to H. B. Hoffman, they have been advised by their said counsel and fully believe that they have a good and meritorious defense to said action.

The affidavit of defendant's counsel, H. B. Hoffman, states, inter alia: That the deponents John M. Entz and Paul P. Entz are older members of the Hutterite faith and are the two persons most familiar with the matters and facts pleaded in the complaint and in defendant's tendered answer and defense; that H. B. Hoffman is a member of the law firm of Hoffman & Cure; that the affiants, John M. Entz and Paul P. Entz, consulted Hoffman's law firm October 29, 1951, and supplied the firm such facts as they had at that time; that default and judgment was entered against the defendant October 24, 1951; that H. B. Hoffman and his law firm first learned that judgment had been given and entered against defendant October 31, 1951, and thereupon Hoffman and his firm promptly began preparation of the papers and proceedings to have the default and judgment vacated; that after John M. Entz and Paul P. Entz had fully and fairly stated to Hoffman the facts concerning this action, upon such statement and upon the information which Hoffman obtained thereafter, he has advised defendant that it has a valid and substantial defense to said action upon the merits, and that such defense is fully and truly set forth in the verified answer, a copy of which is attached to Hoffman's affidavit as exhibit B and that leave is requested to file such answer.

The affidavit of John P. Moore recites: 'That on or about the 13th day of September, 1951, Mr. William F. O'Haire of Sunburst, Montana came to the office of Selden S. Frisbee, Attorney at Law at Cut Bank, Montana, and advised Mrs. Florence Meyers a secretary in said office that he wanted to talk to Selden S. Frisbee. Mr. O'Haire was accompanied by two Hutterites. Mrs. Meyers told Mr. O'Haire that Mr. Frisbee was not in, and asked if he would like to talk to myself. Mr. O'Haire assented and was shown into my office together with the two Hutterites whom he introduced to me as John M. Entz and Paul P. Entz, and as leading members of the Glacier Colony of Hutterites.

'Mr. O'Haire, acting as spokesman and advisor for the Hutterites, stated that he had come to this office with the two Hutterites in order to explain to Mr. Frisbee that a mistake had been made in serving Summons and Complaint upon the Glacier Colony of Hutterites in the present action, and asked me to advise Mr. Frisbee of this contention. Mr. O'Haire and the two Hutterites appeared in a rather jovial mood. I thereupon told Mr. O'Haire and the two Hutterites that I was not handling the present case, and had nothing to do with it, but that I could be glad to refer their remarks to Mr. Frisbee upon his return. Mr. O'Haire and the two Hutterites then went on to explain to me that the defendant, Peter Mandel was not a resident of, nor a member of, and did not live at, the Glacier Colony of Hutterites, but that he was a resident of the Elm Spring Colony in Alberta, Canada. They further stated that Peter Mandel was not working for the Glacier Colony of Hutterites when his collision with O. R. Waggone occurred.

'To these remarks I replied that I was not handling the case and had nothing to do with it, but that if what they said was true, then Mr. Frisbee might possibly have to sue the Canadian Colony of Hutterites of which O'Haire and the two Hutterites were claiming that Peter Mandel was a resident. I further told Mr. O'Haire and the Hutterites in specific terms that from my knowledge of Mr. Frisbee's through investigation of this case, I was convinced that the Glacier Colony of Hutterites was the residence of Peter Mandel and that Peter Mandel was working for said Glacier Colony of Hutterites at the time of his collision with O. R. Waggoner.

'O'Haire and the two Hutterites then, condescendingly, told me that Mr. Frisbee and I were misinformed, reaffirming their statements concerning the residence of Peter Mandel. One of the Hutterites then laid on my desk the copies of the Summons and Complaint which were served on the Glacier Colony of Hutterites, saying that I might as well take them back because they were served on the wrong colony.

'I told them that, as far as I was concerned, they could do anything that they chose with the copies of the Summons and Complaint but, for their own good, they had better keep them, see that they were turned over to their leaders and attorneys and act in accordance with those papers' directions, because, as far as I knew, the suit which Mr. Frisbee had filed was proper in all respects. The Hutterites thereupon picked up the copies of the Summons and Complaint from my desk and retained them.

'The Hutterites then asserted that, anyway, Waggoner was asking too much money as damages in his Complaint, and were admonished by Mr. O'Haire to...

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