Willoburn Ranch Co. v. Yegen

• Decision Date: 22 March 1912
• Citation: 122 P. 915,45 Mont. 254
• Parties: WILLOBURN RANCH CO. v. YEGEN et al.
• Court: Montana Supreme Court

122 P. 915

45 Mont. 254

WILLOBURN RANCH CO. v. YEGEN et al.

Supreme Court of Montana

March 22, 1912

Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.

Action by the Willoburn Ranch Company against Christian Yegen and Peter Yegen. From a judgment by default against Peter Yegen and an order refusing to set aside the default, he appeals. Reversed and remanded.

F. B Reynolds, of Billings, for appellant.

M. J Lamb, of Billings, for respondent.

HOLLOWAY J.

This action was commenced on July 19, 1911, against Christian Yegen and Peter Yegen. Summons was served upon Peter Yegen on August 17th. On September 11th his default was entered for want of an appearance. The action was dismissed as to Christian Yegen, and on September 15th plaintiff made proof and judgment was regularly rendered and entered against Peter Yegen, who thereafter, on September 27th, moved the court to set aside the judgment, open the default, and permit him to answer. The motion was supported by an affidavit accompanied by a proposed answer. The motion was denied, and defendant Peter Yegen has appealed from the judgment and from the order refusing to set aside the default.

1. The first ground of the motion to set aside the default is a mistake on the part of defendant Peter Yegen; but the affidavit discloses that the mistake was one of law, not of fact, and the trial court properly refused the motion on that ground. Mantle v. Casey, 31 Mont. 408, 78 P. 591.

2. The second ground of the motion presents the same question as the appeal from the judgment, viz.: Does the complaint state facts sufficient to constitute a cause of action?

3. The complaint alleges that on November 26, 1902, G. W. Connick was in possession of a section of land and 128 shares of the capital stock of the Big Ditch Company, a corporation, under a contract to purchase the same from Edward G. Bailey; that there was then due on the purchase price of such property installments aggregating $5,580, with interest at 7 per cent per annum, the last of the installments to become due April 1, 1907. It is alleged that on December 26, 1902, an agreement was entered into between Connick and defendant Christian Yegen, by the terms of which Connick transferred his interest in the land and certificates and also transferred other personal property consisting of horses, farm machinery, etc., to Christian Yegen upon an understanding and agreement that Christian Yegen should pay the balance due on the Bailey contract as the installments became due; that Christian Yegen should be allowed interest on the sums so paid out by him at the rate of 1 per cent. per month. The complaint in paragraph 3 then proceeds: "That it was further provided that said Christian Yegen should hold said property in trust until such time as the proceeds derived from the rents and profits of the same, or a sale thereof or any part thereof as the said G. W. Connick might direct, would pay out all indebtedness on said land and contract, and that thereupon the said Christian Yegen would reconvey to the said G. W. Connick, his heirs, executors, administrators or assigns any and all such property as might remain in his possession after such indebtedness might be paid." It is further alleged that by direction of Connick Christian Yegen sold and transferred to Fratt and O'Donnell a portion of the land mentioned, 58 shares of the capital stock of the Big Ditch Company, and 100 shares of the capital stock of the High Line Ditch Company; to Robert Connick a portion of the land, 22 shares of the stock of the Big Ditch Company, and 46 shares of the stock of the High Line Ditch Company; and to this plaintiff a portion of the land, 30 shares of the stock of the Big Ditch Company, and 46 shares of the stock of the High Line Ditch Company. Paragraph 7 of the complaint reads as follows: "That for a long time prior to the 29th day of September, 1908, the rents and profits of said...