Butte Butchering Co. v. Clarke

19 Mont. 306 | Mont. | 1897

Buck, J.

At the time this appeal was argued, counsel for respondent by formal motion suggested a diminution of the record, and asked that the same be corrected by the insertion of copies of the following papers : The original complaint and defendants’ demurrer thereto, and the order overruling ■ the same; defendants’ motion to elect upon which count in its amended complaint plaintiff would stand; the order overruling said motion; and the order overruling defendants’ application to set aside the judgment. It is not necessary that this transcript on appeal should set forth the original complaint, the demurrer thereto, or the order made by consent sustaining such demurrer. The amended complaint superceded the original complaint filed. (See Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258.) The transcript, however, should contain a copy of the motion to elect, or some more formal description of it than it does. The mere reference to it in the affidavits on the motion to set aside the default is not a proper method of presenting it to the consideration of this court. So, also, the court’s orders overruling said motion, and the application to set aside the default, should be set forth with more formality than they are. The transcript in reference to these two orders is as follows :

Record of the Proceedings in This Cause as is Found in the Register of Actions.

1894.

Nov. 1. Motion. Amended complaint filed.

“ 9. ££ Motion filed.

Dec. 29. ££ Set for January 5, 1895.

1895.

Feb. 2. ££ Argued and submitted.

Mar. 23. “ Overruled, exception; defendants given , ten days to answer.

June 18. Cause on calendar and default of all defendants entered.

£i 29. Motion to set aside default filed.

Sep. 7. “ Set for September 14, 1895.

“ 14. 1 £ Heard and overruled.

Respondent was in a position to insist upon the defects aforesaid being supplied by appellants. But it is conceded that these defects can be supplied, and, inasmuch as our decision is in favor of respondent, we will treat the appeal as if there were no such defects in the'record.

Appellants’ first objection is that the court erred in not setting aside the default. Even excluding any consideration of the counter affidavit filed by respondent, no sufficient excuse is shown by appellants for their neglect to file an answer. The answer should have been filed before April 3, 1895, but.it might have been filed at any time from April 2 to June 18, 1895. For a period of almost three months; appellants neglected to file their answer. Strong, indeed, would have to be a showing justifying such neglect. Courts, in the transaction of business, cannot be expected to consult the convenience of litigants, and wait upon the private business affairs of counsel. It is urged that the lower court had no right to take into consideration the counter affidavit of respondent on the motion to set aside the default, and in support of this contention counsel for appellants cites Gracier v. Weir, 45 Cal. 54, and Francis v. Cox, 33 Cal. 323. This counter affidavit contradicted only the facts relied upon to excuse appellants’ negligence, and in no manner the facts set up in the answer tendered as a defense to the action on the merits. It would, be a strange doctrine to hold that a trial court could not pass upon the truth of an affidavit filed simply 'and for the sole purpose of excusing neglect. Counsel misapprehends the authorities he cites on this proposition. They simply enunciate a rule of law that, in passing upon-a motion by a defendant to set aside a default, affidavits will not be entertained to contradict alleged facts which, if true, would constitute a defense on the merits!

Again, it is urged as a ground for reversal “that the judg- • ment was taken by default, without any proper application to the court for the relief demanded in the complaint; the same having simply been ordered on a motion of counsel for plaintiff, without proof and without findings.” Our attention has been called to no section of the statutes requiring a • different application from the one apparently made, or pi oof or findings upon a default where the defendant has been personally served or has appeared. But, whatever the rule, neither from the recitals in the judgment in this transcript, nor from anything else therein, can we infer or assume that the lower court did not comply with the law.

Another objection urged is that the judgment is a joint one, and entered against one not a party to the suit, namely the-. “Union Pacific System.” The action was instituted against certain persons in their representative capacities as receivers of certain railroad corporations, which are alleged in the complaint to have constituted the Union Pacific System. It is against such persons, and not the railroad companies of which said persons were receivers. Appellants virtually admit, in this particular connection, that the judgment would be valid as to such persons in their representative capacities as receivers, if the Union Pacific System was not bound therein as as party. Under the phrase “Union Pacific System” the railroads constituting said system would not be bound by the judgment.

Appellants ask us to consider the summons. But this we cannot do. Whatever defects there are in the summons and the return thereon, they were waived when the defendants appeared and demurred to the original complaint.

The objection that the complaint does not support the judgment is untenable. The first count is for a breach of contract. It is sufficient to support the judgment. The second count sounds, in one view of it, in conversion; and appellants insist that it does not state a cause of action, because it fails to aver any ownership of the calves in plaintiff. It, however, expressly alleges a contract between the plaintiff and appellants for the transportation of the calves, and a breach thereof. It may be defective or ambiguous, but not radically so.. The third count is also sufficient.

We cannot consider the answer tendered on the motion to set aside the default. The judgment is affirmed, and appellants must pay the costs of this appeal. The cause is remanded, however, with directions to the lower court to strike from the judgment the language making the Union Pacific System a party thereto.

Hunt, J., concurs. Pemberton, C. J., not sitting.