107 P. 65 | Idaho | 1910
— On June 27, 1908, the respondent filed an amended complaint against the appellant. On July 10, 1908, the default of the defendant was entered by the clerk for failure to appear and answer. On July 22d the appellant filed a demurrer to the amended complaint. On Oct. 22, 1908, the minutes of the court recite, “This matter came on regularly to be heard this day, upon the motion of the defendant to set aside default heretofore entered, and be permitted to answer, W. C. Howie, Esq., appearing as counsel for defendant, and J. M. Owen, Esq., appearing as counsel
On Apr. 24, 1909, the defendant made a motion for an order vacating and setting aside the order of Apr. 14th and based this motion upon the former application and the papers in the ease and upon the “language of the court used in his decision upon the former application.” On the same day the court made an order: “This matter coming on regularly to be heard, on the motion of defendant to set aside the default and judgment entered in the above-entitled action, W. C. Howie appearing for the defendant and for said motion, and L. B. Green appearing for the plaintiff and against said motion, affidavits having been introduced for and against said motion, and the court having duly considered the same and being fully advised in the premises, it was hereby ordered that said motion be, and the same is hereby overruled and disallowed.”
The appellant appeals from the judgment entered on Feb. 13, 1909, in favor of the plaintiff for the sum of $500 damages and $42.65 costs, and also appeals from the order made in said cause by the judge of the district court on Apr. 24, 1909, overruling and disallowing defendant’s motion to set aside the default and judgment in said cause. The appellant’s contention is, first, that the judgment rendered by the court on Feb. 12, 1909, is erroneous for the reason that at such time the appellant was not in default, because there was a demurrer on file which had not been disposed of, and for that reason the trial court erred in rendering judgment by default.
Referring to the record, it appears that the amended complaint was filed June 27th; that default for want of an an
It may be questioned whether the appellant had any right to file the demurrer after its default had been entered and before such default was set aside, but it does not appear that any objection was made by counsel for respondent, and we shall consider the matter as though the demurrer was rightly filed. The demurrer filed presented an issue of law which the court was required to decide, and the defendant was not in default until such issue of law was disposed of, and it would have been error in the court to permit default to be entered or to have entered judgment against the defendant until such demurrer was overruled. But when the record shows, as it does in this case, that the default of the defendant was entered for want of an answer and trial had and judgment rendered, this court will presume — in the absence of a showing to the contrary — that the trial court acted upon the demurrer and overruled the same. (Smith v. Clyne, 16 Ida. 466, 101 Pac. 819.) In this case, therefore, if the demurrer had been overruled on Feb. 2d when the default was entered, and no answer had been filed, the clerk was fully authorized to enter the default, and the court had jurisdiction to try the case and enter judgment on Feb. 12, 1909, the time when such judgment was rendered. We find no error, therefore, in the clerk entering the default, and the court rendering the judgment from which the plaintiff appeals.
The second contention of the appellant is based upon the order of the trial court declining to set aside and vacate the default of the defendant entered on Feb. 2, 1909. The appellant contends that the trial court erred in not sustaining the appellant’s motion to vacate' and set aside such default.
An application to set aside and vacate a judgment is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal. (Holland v. Lieuallen, 6 Ida. 127, 53 Pac. 398; Pease v. County of Kootenai, 7 Ida. 731, 65 Pac. 432; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Western Loan & Savings Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Bailey v. Taaffe, 29 Cal. 422.) In this case the appellant' did not present or offer to file an answer either at the time he made application to set aside the first default or at the time he made application to vacate and set aside the judgment from which this appeal is taken, and in the case of Holzeman v. Henneberry, supra, this court quotes with approval from Holland Bank v. Lieuallen, supra, as follows:
*675 “Correct practice and the rule in this state to be followed is that, in addition to showing one of the grounds mentioned in section 4229 of the Bevised Statutes, the defendant must, in his affidavit of merits, state the facts upon which his defense is based — must set forth the substance of his defense, so that the court may judge for itself whether the alleged defense is frivolous or meritorious. No such showing was made in this ease. We are not willing to sanction a -rule of practice which substitutes for the judgment of the trial court, as to whether the defendant has a meritorious defense or not, the opinion of some attorney whose opinion is based upon ex parte statements of an interested party not made under oath.”
To entitle the appellant, therefore, to have the judgment opened on the grounds of mistake, inadvertence, surprise or excusable neglect, it was necessary for the appellant to also show that he had a defense to such action, for unless he had a defense and showed to the court by an affidavit of merits or a proposed answer, the facts embracing such defense, it would not be an abuse of legal discretion on the part of the court in overruling his application, whatever the facts might have been as to why he did not appear and file an answer in said cause. But we think it clearly appears from the record in this case that in addition to failing to furnish any affidavit of merits or answer showing that the defendant had a defense, he has also failed to show inadvertence, surprise or excusable neglect for not appearing and answering in said case. Even after the first default was set aside, the defendant failed to appear and file an answer, and upon application to set aside the second default he did not .file an answer.
We find no error in the record and the judgment is affirmed; costs awarded to respondent.