230 P. 60 | Mont. | 1924
delivered the opinion of the court.
This is an appeal from an order of the district court denying a motion to set aside a default and judgment.
The action was brought to obtain possession of a life insurance policy. Summons was served on the defendant May 16, 1923. On May 31 the deposition of defendant was taken at the instance of the plaintiff. On June 9, for want of an appearance, the default of tbe defendant was entered and pursuant thereto, on June 17, judgment was entered in favor of the plaintiff for the relief sought. On September 4, the defendant filed a motion to set aside the default and judgment, and in support of it she filed affidavits and tendered an answer. The plaintiff filed counter-affidavits appending thereto defendant’s deposition to be considered in opposition to her motion. After hearing, an order was made denying the motion, and from this order defendant appealed.
Counsel for plaintiff contend that the law requires the filing of an affidavit of merits and that, therefore, the proffered answer, even though it discloses a prima facie defense on the merits, is insufficient. This court, however, has decided that it is only necessary that facts be sufficiently set forth to disclose a defense to the action, and they may appear in the form of an affidavit or answer. (Smith v. McCormick, 52 Mont. 326, 157 Pac. 1010; Farmers’ Co-operative Assn. v. Roper (on motion for rehearing), 57 Mont. 48, 188 Pac. 141.)
The principal question presented for our determination is whether the facts appearing in the affidavits disclose such excusable neglect as to entitle the defendant to have the default set aside. From the affidavits it appears that one reason for the default is the fact that she labored under the misapprehension that her appearance before a notary public, when her deposition was taken, was the only appearance required of her prior to a trial of the action on the merits. Another excuse
Standing alone, these facts would not warrant the setting aside of the default. The affidavits, however, disclose that on the eleventh day of October, 1921, the defendant was committed to the state hospital at "Warm Springs, by reason of insanity; that on the fourth day of May, 1922, Dr. I. A. Leighton was appointed guardian of defendant; that the guardianship was terminated and she was restored to capacity on September 23, 1922; and “that in spite of the decree of restoration the defendant still suffered from her mental disability to an extent that she did not understand legal proceedings, and was helpless to assert her right until Dr. Leigh-ton, physician and former guardian, brought the case to the attention of Howard Johnson, attorney at law,” now attorney for defendant.
The affidavit of Dr. Leighton discloses that he had observed the defendant for years and had conversed with her repeatedly during the year the default was taken, and that he “is convinced that defendant did not understand the import of the legal papers served upon her in this case. * * * Nor did she understand that she was in default in said ease, but, on the contrary, defendant believed that by appearing before a notary public to give her deposition she preserved her legal right to appear in the matter and would be informed of the time set for trial; that her failure to appear was occasioned by her mistake and inadvertence by the mental disability hereinabove referred to, which said mental disability persists to a great extent in spite of defendant’s restoration to capacity as hereinabove mentioned.”
The only counter-affidavit filed relating to the mental condition of the defendant was the affidavit of P. E. Geagan, attorney for plaintiff, wherein he sets forth that “he is^ acquainted with and has known the defendant, Catherine Brothers, for twenty years last past, and knows that she is
Under any view that may be taken of the affidavits we are obliged to say that doubt exists concerning the mental capacity of the defendant. We are confronted with the positive, unequivocal declaration of Dr. Leighton, the former guardian of the defendant, that at the time the summons was served upon her and until after the default was obtained, she was suffering from the mental disability for which she was committed to Warm Springs. No attempt was made to refute this evidence by medical testimony.
It becomes necessary, then, to determine whether the mental condition of the defendant, together with all the surrounding circumstances, constitutes the excusable neglect contemplated by section 9187 of the Revised Codes of 1921, which provides, among other things: “The court may likewise, in its discretion, after notice * * * relieve a party # # * from a judgment, order, or other proceeding, taken against him through his * * # excusable neglect.”
This section was enacted for the very purpose of giving to the courts the power to relieve parties from judgments obtained against them by reason of mistake, inadvertence or excusable neglect, and in interpreting it courts should, in furtherance of justice, maintain the same liberal spirit which prompted its enactment. The rule is concisely stated by this court in Nash v. Treat, 45 Mont. 250, Ann. Cas. 1913E, 751, 122 Pac. 745: “Each case must be determined upon its own facts; and, when the motion is made promptly and is supported by a showing which leaves the court in doubt, or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion.” No great abuse of discretion by the trial court in refusing to set aside
No two cases will be found which present the same circumstances for consideration, for each depends upon its own facts. (Morse v. Callantine, 19 Mont. 87, 93, 47 Pac. 635; Collier v. Fitzpatrick, 22 Mont. 553, 57 Pac. 181; Farmers’ Co-operative Assn. v. Roper, 57 Mont. 42, 188 Pac. 141; Pengelly v. Peeler, 39 Mont. 26, 101 Pac. 147; Nash v. Treat, supra; In re Davis’ Estate, 15 Mont. 347, 39 Pac. 292; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. Rep. 641, 36 Pac. 759), and therefore applications of this character are addressed to the legal discretion of the court and should be disposed of as substantial justice may seem to require. (Watson v. San Francisco & H. B. R. R. Co., 41 Cal. 17.)
It is the duty of the court to guard carefully the rights of those whose mental condition is such that they cannot act fully and understandingly upon their own judgment in the ordinary affairs of life because, in a sense, they are non sui juris, and, whenever substantial doubt exists as to the mental competency of the party against whom a default is taken, it is always better to resolve the doubt in favor of the applica-' tion to set aside the default and dispose of cases of this character upon their merits, rather than to maintain too strict a regard for technical rules of procedure.
It is urged that due diligence was not exercised in making application to have the default set aside. The affidavits filed in behalf of the defendant recite that she did not learn of the default for some days after the entry of judgment; that several days were consumed in search of the policy; that upon finding it defendant wrote to the insurance company to ascertain its validity and first learned that it was still in force when she received its reply on August 29. Defendant’s attorney then prepared the application to set aside the default and filed it on September 4. Considering the defendant’s mental condition, together with all the surrounding circumstances, we can
Neglect, no more excusable than that disclosed by the record before us, has been held sufficient to justify reversal of trial courts for their refusal to set aside defaults. We are of the opinion that excusable neglect is shown, that a meritorious defense is tendered, and that under all of the circumstances, the trial court should have opened the default and permitted the defendant to answer.
The order is reversed and the cause remanded to the district court, with directions to set aside the default and judgment and permit the defendant to answer.
Reversed and remanded.
