Wagner v. Mower

• Decision Date: 06 August 1925
• Citation: 237 P. 118,41 Idaho 380
• Parties: JAKE WAGNER, Respondent, v. J. L. MOWER, Appellant
• Court: Idaho Supreme Court

237 P. 118

41 Idaho 380

JAKE WAGNER, Respondent, v. J. L. MOWER, Appellant

Supreme Court of Idaho

August 6, 1925

DEFAULT JUDGMENT-NEGLIGENCE OF ATTORNEY-MOTION TO SET ASIDE-WHEN NOT DISCRETIONARY.

Where a showing is made in support of a motion to set aside a default and the judgment entered thereon, that such default was due to the negligence of an attorney who had been employed to appear in said action and file a pleading on behalf of the party defaulted; that the attorney had accepted such employment and agreed to appear but failed to do so, and it further appears from an answer and cross-complaint tendered that such defaulting party had a meritorious defense to such action, and no counter-showing is made against such application, under C. S., sec. 6726, as amended by Sess. L. 1921, chap. 235, p. 526, nothing is left to the discretion of the court and the judgment should be set aside.

APPEAL from the District Court of the Sixth Judicial. District, for Custer County. Hon. Ralph W. Adair, Judge.

Action to foreclose mortgage. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs to appellant.

W. W Adamson, for Appellant.

"In determining the question of discretion the power of the court should be freely and liberally exercised under the statute so as to dispose of the cases upon their substantial merits." (Pittock v. Buck, 15 Idaho 47, 96 P 212; Humphreys v. Idaho Gold Mines Dev. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817; Hamilton v. Hamilton, 21 Idaho 672, 123 P. 630.)

"When, because of a mistake, misunderstanding or excusable neglect, an attorney leaves his client unprotected, the court will set aside the judgment." (Utah etc. Savings Bank v. Trumbo, 17 Utah 198, 53 P. 1033; Nichells v. Nichells, 5 N.D. 125, 57 Am. St. 540, 64 N.W. 73, 33 L. R. A. 515; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. 641, 36 P. 759; Adams v. Rathbun, 14 S.D. 552, 86 N.W. 629.)

Where a default judgment is taken against a defendant on account of the neglect or failure of an attorney to file proper papers within the time, and a proper application is made within six months from the entry of the judgment, then under C. S., sec. 6726, as amended, where the facts are clear and uncontradicted, as in this case, there is no discretion in the trial court and such court must set aside the judgment. (Brainard v. Coeur d'Alene etc. Min. Co., 35 Idaho 742, 748, 208 P. 855.)

E. H. Casterlin, for Respondent.

An application to vacate a default judgment is entrusted to the discretion of the trial court and such discretion will not be reviewed unless abused. (Domer v. Stone, 27 Idaho 279, 149 P. 505; Leonard v. Brady, 27 Idaho 78, 147 P. 284; Franklin Co. v. Bannock Co., 28 Idaho 653, 156 P. 108.)

Affidavits on motion to set aside a default judgment must set forth facts from which the court can judge whether or not the defendant has a meritorious defense. (Culver v. Mountain Home Elec. Co., 17 Idaho 669, 107 P. 65; Harr v. Kight, 18 Idaho 53, 108 P. 539; Hall v. Whittier, 20 Idaho 120, 116 P. 1031.)

WILLIAM A. LEE, C. J. Wm. E. Lee, Budge, Givens and Taylor, JJ., concur.

OPINION

WILLIAM A. LEE, C. J.

This is an action by respondent Wagner to foreclose a real estate mortgage given by defendants John J. Bauman and his wife Celia Bauman, to which action J. L. Mower was made a party defendant and also the North American Mortgage Company. All of the defendants were served with process but failed to appear or otherwise plead within the time allowed by law. A default against each of them was entered by the clerk and the court decreed a judgment of foreclosure in favor of respondent for the amount of his mortgage with interest, costs and attorney's fees. The defaulting defendants Mower and North American Mortgage Company were adjudged to have no interest and to be forever barred and foreclosed from all equity of redemption or claim of interest in and to the mortgaged premises described in the complaint. This decree was entered February 21, 1923, and immediately thereafter appellant Mower moved to vacate and set aside the default against him, on the grounds of surprise and excusable neglect; that he had a good defense to said action by reason of holding a prior and first mortgage on the premises. In support of this motion, he filed an affidavit of himself stating that he was served with summons August 13, 1922; that soon thereafter he talked with defendant Bauman, who told him that he would go to Mackay and engage an attorney to look after the interests of appellant in this action; that Bauman thereafter advised him that he had employed George L. Ambrose, Esq., an attorney at Mackay, to represent Mower's interests in the foreclosure suit and that he need not give further attention to the case as said attorney was protecting his interests; that Bauman agreed to look after his interests because Bauman admitted that Mower had a first mortgage on the premises; that Bauman had renewed said loan with Mower and at the time had represented to affiant that he had no other mortgage on this property; that he was for the first time apprised of there being another mortgage when he was served with summons in the foreclosure action; that by reason of said fraudulent representations, Bauman had agreed to pay the expenses of having Mower's interests represented in the foreclosure proceedings by employing for Mower an attorney to look after his interests; that he relied upon these representations that Bauman had engaged counsel for him and that his interests were being protected and gave no further attention to the matter until February, 1923, when he found from the records that default had been entered against him in the action.

He also alleges that he had a good defense to said action because of having a prior mortgage on said premises, which is prior in time and superior in right to the mortgage lien of plaintiff. He prayed that said default be set aside and that he be allowed to file his answer and cross-complaint.

Defendant Bauman also made an affidavit setting forth substantially the same state of facts; that...