Western Loan & Savings Co. v. Smith

Decision Date26 February 1906
Citation85 P. 1084,12 Idaho 94
PartiesTHE WESTERN LOAN AND SAVINGS COMPANY, a Corporation, Appellant, v. C. S. SMITH, NELLIE J. SMITH and JOHN W. GIVENS, Respondents
CourtIdaho Supreme Court

AFFIDAVIT TO SET ASIDE DEFAULT JUDGMENT-MISTAKE-INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT.

1. Affidavits on motion to set aside a default judgment under the provisions of section 4229 of the Revised Statutes must show that the default occurred through mistake, inadvertence surprise or excusable neglect.

2. An application to set aside and vacate a default judgment is addressed to the sound discretion of the court to which the application is made, and unless it appear that such discretion has been abused, the order will not be disturbed on appeal.

3. The showing made in this case reviewed and held insufficient to authorize the setting aside a default judgment.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.

Plaintiff moved on the affidavit of the president and manager of plaintiff corporation, and the pleadings and files in the action to set aside a default judgment. Motion was denied and plaintiff appealed. Affirmed.

Judgment affirmed. Costs to respondent.

Hansbrough & Adamson, for Appellant.

Where the allegations of an answer, pleaded again in the affirmative form, are in effect only a denial of the allegations of the complaint, they do not constitute a cross-complaint. (Goddard v. Fulton, 21 Cal. 430; Shain v. Belvin, 79 Cal. 262, 21 P. 747.) A cross-complaint is improper and should be disregarded where the same matter is set up in it that is already pleaded in the answer. (Banning v. Banning, 80 Cal. 271, 13 Am St. Rep. 156, 22 P. 210; Akin v. Cassidy, 105 Ill 22; Baker v. Oil Traction Co., 7 W.Va. 454; Harrison v. McCormick, 69 Cal. 616, 11 P. 456.)

Matters which are proper as a defense will not be turned into a counterclaim or cross-complaint merely by a prayer for affirmative relief. (Shain v. Belvin, 79 Cal. 262, 21 P. 747; Doyle v. Franklin, 40 Cal. 107.) There was no new matter set up in either the answer or alleged cross-complaint against plaintiff, and if any new matter was set up in the answer, it is deemed denied by plaintiff. (Rev. Stats. 1887, sec. 4217.)

If the defendant has a cause of cross-complaint and wishes affirmative relief, his pleadings should show distinctly that it was intended as a cross-complaint; if it commences as follows: "And for a further and separate answer and defense to said action defendant avers by way of cross-complaint," the pleadings will be construed against the pleader and as against him it will be treated as an answer merely. (Goldman v. Bashore, 80 Cal. 146, 22 P. 82; Shain v. Belvin, 79 Cal. 262, 21 P. 747; Meeker v. Dalton, 75 Cal. 154, 16 P. 764; 5 Ency. of Pl. & Pr. 680.)

A cross-complaint, like a complaint, must in itself state all the requisite facts to entitle the defendant to affirmative relief, and defects in it cannot be cured by the averments of any of the other pleadings. (Kreichbaum v. Melton, 49 Cal. 50; Collins v. Bartlett, 44 Cal. 371; Coulthurst v. Coulthurst, 58 Cal. 239.)

STOCKSLAGER, C. J., SULLIVAN, J. Ailshie, J., Sullivan, J., and Stockslager, C. J. , concurring.

OPINION

STOCKSLAGER, C. J.

Plaintiff commenced this action in the district court of Bingham county against C. S. Smith and Nellie J. Smith to foreclose a mortage it had against these defendants. The complaint alleges that on the twenty-eighth day of February, 1891, defendants Smith executed their promissory note for the sum of $ 1,000, payable on or before five years after date with interest at the rate of nine per cent per annum payable monthly in advance, to the Western Building and Loan Association, a corporation, under the laws of Idaho. That on the same day defendants executed their mortgage to secure the payment of the note above referred to; that said mortgage was duly acknowledged, delivered to said corporation and filed for record. That on the tenth day of October, 1894, said Western Building and Loan Association assigned, transferred and delivered all its right, title and interest in and to the note and mortgage to the Western Loan and Savings Company, which company is now the owner and holder of said note and mortgage. That on or about the second day of January, 1900, an accounting and settlement was had between plaintiff and C. S. Smith, and there was found to be a balance due on said note of $ 1,104.80, which said amount Smith then and there agreed in writing to pay; that no part of said sum or interest has ever been paid since said date; that on or about the twenty-first day of August, 1894, Charles S. and Nellie J. Smith made and delivered to one Charles Bunting their certain promissory note for $ 3,241.60, and to secure the payment thereof executed and delivered to said Bunting a certain mortgage of same date, duly acknowledged, recorded, etc. The property described in the mortgage is lots 1, 2, 3, 4 and 5, block 52, Danilson & Shilling's addition to Blackfoot, Idaho being the same property described in the mortgage marked plaintiff's exhibit "A" and made a part of the complaint. The ninth allegation of the complaint is that the said mortgage given to Bunting is subsequent and inferior to the mortgage given by the defendants, C. S. Smith and Nellie J. Smith, to the Western Building and Loan Association. Then follows an allegation that plaintiff is informed and believes, and therefore alleges, that the defendant John W. Givens is the assignee of the Bunting note and mortgage, and claims to have some interest or claim upon said premises, or some part thereof, by virtue of being the owner and holder of said mortgage, which is subsequent to the mortgage of plaintiffs. Then follows prayer "for the sum of $ 1,404.80, with interest from January 2, 1900, at nine per cent per annum, . . . . that the defendants and all persons claiming under them subsequent to the execution of the mortgage given by said C. S. Smith and Nellie J. Smith to the Western Building and Loan Association upon said premises . . . . may be barred and foreclosed of all rights, claims or equity of redemption in said premises," etc. To this complaint a demurrer was filed by counsel for defendant John W. Givens, to wit:

"1. That the complaint of the plaintiff herein does not state facts sufficient to constitute a cause of action against the defendant. 2. That said action is barred by the provisions of section 4052 of the Revised Statutes of Idaho 1887." If the court ever passed upon this demurrer the record fails to disclose the order. On the twenty-fifth day of April, 1905, defendant Givens filed what is termed answer and cross-complaint. In the answer, alleging as a reason that he has not sufficient knowledge, information or belief to answer positively, he denies all the allegations from 1 to 7; admits the seventh allegation which refers to the execution and delivery by the defendants Smith to Charles Bunting of the mortgage described in the complaint. Denies the eighth allegation, which is that the Bunting mortgage is inferior to the one sued on by plaintiff; admits the allegations of the Bunting mortgage with note to defendant Givens, and avers that he is now the lawful owner and holder thereof; that the principal sum has not been paid, and no interest with the exception of $ 242.45 paid by C. S. Smith to defendant Givens on February 20, 1899, and another payment made on said interest by said Smith on the thirtieth day of April, 1903.

The fourth allegation of the answer is that the defendant is informed and believes, and upon such information and belief alleges, that the plaintiff's action herein is barred by the provisions of section 4052 of the Revised Statutes of Idaho of 1887. And further answering by way of cross-complaint against the plaintiff and each and all of the defendants hereto other than this cross-complaint, the said John Givens alleges as follows, to wit: 1. Sets up the execution and delivery of the note by defendants Smith to Bunting and a copy thereof; 2. The execution and delivery of the mortgage to secure the note; 3. The assignment of the note and mortgage to Givens; 4. The payment of certain interest on the note by C. S. Smith and the amount he claims to be due on the note; 5. That he is the lawful owner and holder and entitled to payment. etc.; 6. That plaintiff has, or claims to have, interest in or claim upon said premises, or some part thereof, as mortgagee or otherwise, and refers to some contract or claim held by Charles A. Warner, deceased, by virtue of a trust deed executed and delivered by defendants Smith to said Warner for the payment of certain debts, but said interest or claim of said Warner is subsequent to and subject to the lien of cross-complainant's mortgage. Seventh only refers to the power of sale and application of the proceeds in case of default in payment, etc., and then follows prayer that cross-complainant may have judgment for $ 3,241.60, with interest at one per cent per month from the twenty-first day of August, 1894, and usual prayer for general relief.

Counsel for plaintiffs demur to this answer and cross-complaint, to wit: "Comes now the plaintiff in the above-entitled action and demurs to the answer filed by the defendants C. S. Smith, Nellie J. Smith and John W. Givens, and for grounds of demurrer allege as follows: That neither of said answers state facts sufficient to constitute a defense or action against this plaintiff." If the court ever ruled upon this demurrer the record is silent as to the order.

The next step taken as shown by the record was what is termed "Reply to answer and pretended cross-complaint," which was filed July 3, 1905; the first...

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