182 P. 852 | Idaho | 1919
This action was commenced by appellants to recover on a judgment made and entered against respondent in Cherokee county, Kansas. An answer was filed, and, on motion of appellants, the court granted judgment in their favor on the pleadings. Respondent moved that the judgment be set aside and for permission to file and serve an amended answer, on the following grounds:
“1st. That said judgment was rendered against this defendant by his excusable mistake, inadvertence and surprise.
“2d. That at the time said judgment was rendered an order had been made in the above-entitled court sustaining the demurrer to the answer and under the rules of the court, particularly rule six thereof, the defendant was entitled to five days after the service of the order sustaining said demurrer, or notice thereof, in which to file and serve an amended answer herein, and that said judgment was rendered during said time upon the pleadings when defendant was entitled to file and serve an amended answer in this action.
“3d. That defendant has a good afid meritorious defense to said action as will appear by the verified amended answer, a copy of which is submitted herewith and served herewith, and the entry of said judgment against defendant was caused by his excusable neglect, surprise and mistake, and said defendant intended at all times and stages to appear and defend said action and to present his defense herein, and that in justice he should be entitled and allowed to file and serve said amended answer and have said cause determined upon the merits.”
The motion was granted and this appeal is from that order.
The order does not designate the ground on which it was granted, but it is apparent it was not based on the second specification in the motion, i. e., that the judgment was rendered during a period of time provided by the rules of the district court within which respondent might file and serve an amended answer.
Respondent contends his original answer states a defense to the cause of action set forth in appellants’ complaint and, therefore, the entry of judgment on the pleadings was erroneous. If that is true, the error might have been corrected by appeal from the judgment, had one been taken. No such contention was made in the district court in support of respondent’s motion, and it may well be doubted whether a trial court has power to vacate a judgment for such a cause, a point not necessary to decide, for if it has not such power appeal is the only remedy and if it has such power that ground of relief was waived in this case by failure to specify it in support of the motion. Be that as it may, the sufficiency of the answer cannot be urged for the first time in the supreme court in a case of this kind. '
C. L., sec. 4229, provides: “The court may .... relieve a party, or his legal representative, from a judgment, order or other' proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect: .... ”
In support of his motion to vacate the judgment respondent presented an amended answer containing allegations which, it is contended, show the Kansas court to have been without jurisdiction to enter the judgment which forms the basis of this action. He also filed an affidavit in which he stated that
The order appealed from is reversed. Costs are awarded to appellants.