200 P.2d 359 | Idaho | 1948
Appellants filed August 31, 1946, a complaint in unlawful detainer, for restitution of premises, $300.00 a month rental trebled as damages, and $1,000.00 general damages. A general demurrer thereto was overruled November 25, 1946, and answer not being filed within the fifteen days granted therefor, default was entered December 17, 1946, in a term which expired January 5, 1947. Answer was filed December 20, but the record is silent as to service upon appellants or their attorney as required by Section
The only showing in support of setting aside the default was the asserted telephone conversation which respondents contend amounted to an order. The time within which the defendants were to file their answer having been fixed at fifteen days from the date of the overruling of the demurrer, the only way that time could be extended was by proper order of the court or by agreement of the parties, express or implied. By Section
Oral conversations over the telephone or on the street between court and counsel are not orders. In re Skerrett's Estate,
Respondents urge that appellants, by waiting approximately six months after the entry of the default before applying for judgment, waived the default. 31 Am. Juris. 127, Sec. 510.
The statute does not require that notice be given the adverse party before the entry of the default or judgment on default. Section
While there are cases tending to support respondents, they are upon facts and statutes substantially different from herein. One statute authorizes the entry of default judgment in a subsequent term of court: Section
Such disposition of the cause obviates the necessity of considering other asserted errors.
Judgment is, therefore, reversed and the cause remanded with instructions to reinstate the default and upon proper proof, Sections
HOLDEN and HYATT, JJ., and BAKER, D.J., concur.
MILLER, J., sat at the hearing, but did not participate in the opinion.