Weaver v. Rambow

• Decision Date: 04 August 1923
• Citation: 217 P. 610,37 Idaho 645
• Parties: S. A. WEAVER, Appellant, v. O. R. RAMBOW, Respondent
• Court: Idaho Supreme Court

217 P. 610

37 Idaho 645

S. A. WEAVER, Appellant, v. O. R. RAMBOW, Respondent

Supreme Court of Idaho

August 4, 1923

MOTION TO SET ASIDE DEFAULT-WHEN SUFFICIENT-STATUTORY CONSTRUCTION.

1. Under the amendment, Laws 1921, c. 235, p. 526, to C. S sec. 6726, a motion to vacate a default, made upon the records and files of the cause and supported by the affidavit of the attorney for the moving party that such default had been taken through the negligence and failure of such attorney, without any fault of the defendant, when such facts are not controverted, is sufficient, without stating any of the additional grounds mentioned in said section, and without being accompanied by a showing that the defendant has a meritorious defense.

2. It is a general rule of law that in construing a statute, a court should take into consideration the reason for the law that is, the object and purpose of the legislature in enacting the same.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Plaintiff appeals from an order setting aside a default judgment. Affirmed.

Judgment affirmed, with costs to respondent.

E. H Berg and Ezra R. Whitla, for Appellant.

The judgment in this action having been the property of the plaintiff, Weaver, he should not be deprived thereof unless there was some sufficient showing in support thereof. ( Ticknor v. McGinnis, 33 Idaho 308, 193 P. 850.)

A motion simply to set aside a default not made upon any grounds cannot be considered or granted by the court. ( Ross v. San Diego Glazed Pipe Co., 50 Cal.App. 170, 194 P. 1059.)

The affidavit must show one of the statutory grounds. ( Western L. & S. Co. v. Smith, 12 Idaho 94, 85 P. 1084.)

The amendment by adding a new ground, namely, the neglect of the attorney, did not thereby dispense with the necessity of showing a meritorious defense. (Culver v. Mountain Home Electric Co., 17 Idaho 669, 107 P. 65.)

The courts have uniformly held that such enactments should be strictly construed and not be allowed to extend further than the clear intention of the legislature. (Electric Plaster Co. v. Blue River City Twp., 81 Kan. 730, 106 P. 1079, 25 L. R. A., N. S., 1237.)

Lynn W. Culp, for Respondent.

"In construing a statute, the court should take into consideration the reason for the law--that is, the object and purpose of the same, and the object in contemplation of the legislative body in enacting the same." (Rural H. S.D. No. 1 v. School Dist. No. 37, 32 Idaho 325, 182 P. 859, and cases cited; C. S., sec. 9444.)

"Remedial statutes should always be construed to prevent a failure of the remedy." (Utah & N. R. Co. v. Crawford, 1 Idaho 770.)

WILLIAM A. LEE, J. McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an appeal from an order setting aside a default judgment against respondent. Appellant filed a complaint in the district court in and for Kootenai county, to recover upon three separate causes of action, and stated them in a single count. The court required him to amend, and separately state his causes of action. He filed and served upon respondent's counsel this amended complaint October 10, 1921, and said counsel failed to plead to the same within ten days. Respondent was thereupon defaulted October 21, 1921, and the findings of fact and conclusions of law and judgment in the sum of $ 1,080 and interest were immediately entered. December 3, 1921, respondent's counsel moved to vacate the judgment, and in support of the motion his counsel, Lynn W. Culp, Esq., filed an affidavit setting up the facts substantially as stated, and also that immediately upon the service of the amended complaint he prepared a demurrer to the same, which he intended to file, and believing that it had been filed and served, took no further action until November 23d, when he learned that this default judgment against respondent had been entered; that there had been no intention to default in said cause, and that he had advised respondent that he had a meritorious defense; that it was the intention of both respondent and counsel to prosecute the same, and that he had been paid a substantial sum for such services.

To this Edward H. Berg, Esq., files an affidavit wherein he states that upon the court requiring him to amend the original complaint, he advised respondent's counsel that he would immediately do so, and further that on the day the judgment was entered, appellant informed him that respondent had stated that the judgment in favor of appellant and against him would be no good; that he, the appellant Weaver, did not believe that respondent intended to go to trial upon said cause of action. That part of Berg's affidavit is denied by respondent.

The order of the district judge setting aside this judgment was made and entered January 21, 1922, no reason being assigned.

Appellant assigns as grounds for reversal that the court erred in entertaining the motion to set aside the default, for the reason that it was not made upon any statutory grounds, and that it did not contain any sufficient showing.

Appellant's counsel contend that the motion to vacate this judgment fails to show that it was made upon any of the statutory grounds, and therefore does not fall within any of the grounds specified in C. S., sec. 6726, which are: (1) mistake (2) inadvertence (3) surprise (4) excusable neglect; and further, that even if the amendment, Laws 1921, c. 235, p. 526, is construed to give an...