Lead Opinion
On Oсtober 23, 1947, plaintiff filed a bill of particulars in the county court of Thurston County, to recover alleged “over-charges made.and collected” from plaintiff by defendant in a contractual purchase of merchandise. Defendant entered its general appearance on October 29, 1947, but the cause was not tried on the merits until May 17, 1948, whereat plaintiff adduced evidence and rested, but defendant offered no evidence. On that date the county court еntered judgment for plaintiff and against defendant for $69 and costs, awarding plaintiff $50 attorneys.’ fees as a part thereof.
On the same date, defendant filed notice of appeal to the district court. May 22, 1948, supersedeas bond was filеd, and on June 3, 1948, transcript was filed in the district court. On June 15, 1948, plaintiff filed his petition on appeal, copy of which with notice of its filing,
That defendant, having entered a general appearance in the county court, although it offered no affirmative proof, had a right to appeal to the district court, there can be no doubt. Baier v. Humpall,
However, on September 8, 1948, opening day of the next term of the district court, time for filing answer or other pleading by defendant had long since expired, and defendant was then in default of any pleading. Thereat, the trial court entered defendant’s default, evidence was adduced by plaintiff, and judgmеnt was entered against defendant for $70.46 and costs, awarding plaintiff $100 attorneys’ fees as a part thereof, specifically finding “that under the pleadings and the evidence plaintiff is entitled to have an attorney’s fee taxed for the services of his attorney, * * Thereafter, because of miscalculation of interest, plaintiff filed a remittitur of 56 cents from the judgment.
On October 2, 1948, defendant filed a motion “that the court enter an order setting aside and vacating the default judgment heretofore entered in the above entitled action; and that the court grant the said defendant right to file the proposed attached answer in said action; and that the court set a date for trial of the issues in said actiоn.” On the same date two affidavits of counsel for defendant, purportedly supporting the motion, were filed.
On November 15, 1948, plaintiff filed resistance to defendant’s motion, alleging five factual reasons why the motion should be overruled, beсause of the fault, ■negligence, and lack of diligence in th,e premises by defendant’s attorneys. It alleged also that defendant’s ■proposed answer did not state a meritorious defense to plaintiff’s action.
On January 18 and 19, 1949, defеndant respectively filed a motion to set aside the order overruling its motion to set aside the default and judgment, and a motion for new trial, for the reasons, substantially, that there was irregularity in the proceedings, abuse of discretion by the triаl court, that the judgment was not sustained by the evidence, and was contrary to the law and the evidence. Both motions were respectively overruled, and defendant appealed to this court, assigning substantially that the trial court errеd in entering the default judgment and refusing to set it aside. We conclude that the assignments should not be sustained.'
At the outset, it should be noted that there is no bill of exceptions filed in this court as there was in Taylor v. Trumbull,
It is generally the rule in this jurisdiction that: “Where a default has been regularly entered it is largely
“It is the spirit and policy of the law to give every party an opportunity to prosecute or defend his case in court and courts will never deny such right except for the fault or gross laches of such party or his authorized attorney.
“Ordinarily, where a judgment has been entered by default and a prompt application made at the same term to set it aside, with a tender of an answer disclosing a meritorious defense, the court should, on reasonable terms, sustain the motion and permit the cause to be heard upon the merits.” Barney v. Platte Valley Public Power and Irrigation District, supra.
The application of the foregoing general rules, however, is dependent entirely upon the facts appearing in each particular case. In other words, the factual showing made by the parties determines whether or not the trial court has abused its discretion. As stated in Sang v. Lee,
In that connection, it will be observed, however, that since there is no bill of exceptions in the case at bar, then there is no evidence before this court upon which such determination can be made. In a similar situation, it was hеld in Lichtenberger v. Worm,
As held in Beard v. Ringer,
As recently as Dryden & Jensen v. Mach,
“This court will not review testimony in the form of affidavits used in the trial court on the hearing of a motion for new trial, unless such affidavits have been offered in evidenсe and appropriately included in and presented by a bill of exceptions.”
The situation therein was identical in principle with that at bar, and controlling here. In other words, without a bill of exceptions, the only question which can bе presented to this court for decision is the sufficiency of the pleadings to support the judgment.
In conformity with the foregoing rules, we have examined the pleadings and conclude that they were sufficient. Therefore, the judgment should be аnd hereby is affirmed.
Plaintiff’s motion for an allowance of attorneys’ fees
Affirmed.
Dissenting Opinion
dissenting.
I do not agree with the basis of the court’s opinion as to the necessity of a bill of exceptions. In denying the motion to set aside the dеfault judgment, the trial court made an extended finding of facts in the form of a memorandum. This memorandum formed the basis of and was specifically referred to in the court’s order. The findings of fact are here as a part of the transcript. The appellant does not challenge those findings. It accepts them. The appellee here adopts those findings. The appellant here challenges the correctness of the order based upon those findings. It submits questions of law and not fact. Under these circumstances “an examination of the evidence adduced in the trial court” is not required. The reason for the rule requiring a bill of exceptions has no application to this situation. It would be. а futile thing, a needless expense, and encumber the record to bring up a bill of exceptions containing the showing upon which the findings are based.
The absence of a bill of exceptions raises a presumption that the evidence supports the findings of fact made by the trial court. Joyce v. Tobin,
In Reigle v. Cavey,
' Authoritative texts state the rule as follows: “Where the error sought to be remedied appears upon the record, the party aggrieved may avail himself of it on appeal or writ of error without bill of еxceptions, case, statement, or other statutory remedy, and in such case it is improper to bring a bill of exceptions, case, or other substitute therefor, to the appellate court. Accordingly, no bill'of exceptions, case, or statement is necessary where the matters presented for review sufficiently appear from the pleadings and proceedings of record, such as the question whether the pleadings or findings support the judgment, * * *.” 4 C. J. S., Appeal and Error, § 785, p. 1268. “If there is no bill of exceptions or settled case the findings are ordinarily controlling on appeal, and the only question for review is whether the pleadings and findings sustain the judgment, or the proper construction of the order appealed from.” 4 C. J. S., Appeal and Error, § 788, p. 1276. “Where the facts are specially found by the court, no bill of exceptions is necessary.” 3 Am. Jur., Appeal and Error, § 625, p. 240.
We should answer the questions of law presented, so far as necessary to determine the appeal.