97 P. 1028 | Idaho | 1908
Lead Opinion
This is an appeal from an order vacating and setting aside a judgment obtained by default. The action is one in replevin, commenced by the appellant against the respondents, Lavin and others, to recover the possession of certain personal property, consisting of a lot of undertaking goods, alleged to be of the value of $947.50. To the complaint the defendants interposed a demurrer, which appears to have been confessed by the plaintiff, and he thereafter filed an amended complaint, and served the same by mail on one of the attorneys for the defendants. It appears from the record that the attorneys who filed the demurrer to the complaint were nonresidents and, as required by the laws of this state, signed the name of the resident attorney to said demurrer, whom they neglected to notify of that fact. Under our law it is the proper practice to serve papers in an action on the resident attorney, and the service of the amended complaint on the resident attorney was a sufficient service. When the amended complaint was served on such resident attorney, he had no information in regard to said action, and wrote a letter to the attorney for appellant, requesting him to advise the writer in regard to the ease, as he was not familiar with it. Counsel for appellant did not answer said letter, and thereafter had a default entered, and after said default was entered, said resident counsel met appellant’s attorney on the street, and some conversation occurred between them in regard to the matter, and it appears that the im
In order to fully understand this case it will be necessary to consider the manner in which said personal property came into the hands of the defendants in this action. They do not claim to be the owners of the property. They only claim that they have a lien on the same for keepers’ fees, or for the rent of the building in which the sheriff had theretofore stored said personal property. The facts leading up to the sheriff’s taking possession of said property are substantially as follows: It appears that a proceeding had been commenced for the foreclosure of an alleged chattel mortgage, given by the appellant Beck on said personal property; that the sheriff took possession thereof, and stored the same in a building belonging to the Lavins, or a building over which they had control. Thereafter Beck brought suit to restrain the foreclosure of said mortgage, and before said action was tried, a stipulation or agreement in settlement of said, matter was entered into, under and by which it was expressly stipulated that the plaintiff, Beck, should have the personal property covered by said chattel mortgage, free and clear of any and all claims on the part of the defendants, or either of them, and that the said Beck should pay the costs and expenses of the sheriff for keeping and caring for said personal property, if any, since the same had been in his hands. In the action in which said stipulation was made the sheriff was made a party, and, as we view it, regardless of other ques
Counsel for respondent, in support of his contention, cite sec. 3445, Rev. Stat. 1887, as amended by Laws 1893, p. 67,
The order setting aside the judgment must therefore be reversed and the case remanded, with instructions to overrule said motion. Costs are awarded to the appellant.
Rehearing
ON REHEARING.
This ease was submitted to this court at its March term, 1908, and was decided by the court on May 5, 1908 (ante, p. 363, 97 Pac. 1028). Thereafter a petition for rehearing was granted and the case was again orally argued at the October term of this court. The facts necessary to an understanding of the case are set forth in the former opinion and will not be repeated here.
The only point urged on the rehearing was that the court had erred in considering counter-affidavits on the motion to set aside the default, which affidavits, it is contended, controverted the facts set up as a defense. We did not consider in the former opinion that the facts referred to in the counter-affidavit were a contradiction of the proposed defense, but considered them as further and additional facts connected with said transaction that had not been set out in the proposed defense. But conceding that they were contradictory of the facts set up as a defense to the action, it would be of no consequence in this case, for the reason that the facts plead do not constitute a defense.
It is well settled that a default will not be set aside unless a sufficient affidavit of merits is filed, which affidavit should show sufficient cause for setting aside the default as well as the facts that would constitute a defense to the action; but proper practice does not permit the facts stated in the applicant’s affidavit, which constitute his defense to the action, to be rebutted by counter-affidavits. The court will
The defendants in their application to set aside the default as a defense set forth a certain contract or stipulation entered into between this appellant and the sheriff of Kootenai county, and another, whereby certain proceedings or actions then pending should be settled and adjusted, one of which actions involved the personal property which is sought to be replevined in this case. The third and fourth paragraphs of that stipulation are as follows:
“3. That the plaintiff Simon Beck have the personal property covered by said chattel mortgage, free and clear of any and all claims on the part of the defendants or either of them.
“4. That the plaintiff Simon Beck out of the personal property so covered by said chattel mortgage, or otherwise, pay the costs and expenses of the sheriff for keeping and caring for said personal property, if any, since the same has been in the hands of the said sheriff.”
In that stipulation, the sheriff, who had taken possession of that property, stipulated that this appellant should have said personal property “free and clear from any and all claims on the part of the defendants or either of them”; and it was further provided that this appellant should pay the costs and expenses of the sheriff for keeping and caring for said personal property out of said personal property or otherwise. It was there left optional with the appellant whether he pay the costs out of this personal property or otherwise. He was at liberty to pay all costs out of whatever funds he might deem best. We think the clear intention of the parties to that stipulation was to turn said personal property over to the appellant, and the sheriff apparently was willing to take the appellant personally for the payment of his costs and charges in holding the same. We think this conclusion is irresistible from the wording of said stipulation. That being true, Beck was entitled to the immediate posses
We therefore conclude that the defendant has failed to set up a meritorious defense or any defense at all, and for that reason the trial court erred in setting aside said default.
The order setting aside said default must be reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.