116 P. 1031 | Idaho | 1911
This is an appeal from an order of the district court setting aside and vacating a judgment and opening a default. Plaintiff, who is appellant here, commenced an action against the defendants and respondents to recover judgment in the sum of $500 for services rendered by the plaintiff to the defendants. The defendants demurred to the complaint and thereafter and on the 13th day of February, 1911, the defendants appeared in open court by counsel
“That the said defendants and each of them have a good defense to the complaint of the plaintiff herein; that they have fully and fairly stated the facts to their said attorneys of record and have been advised that they have a good and substantial defense on the merits of said action, and that your affiant verily believes the same to be true.”
During the course of the argument, it was insisted by counsel for the plaintiff that no affidavit of merits had been filed and that no answer had been filed, whereupon the court allowed the defendants to file an answer, which denied the material allegations of the complaint. The original judgment was ordered by Hon. C. O. Stoekslager, a judge of the fourth district, and the order vacating the judgment and setting
The only question presented here is that of the sufficiency of the showing made by the defendants to justify the court in vacating the judgment and setting aside the default. The application was heard on affidavits and files in the case and we have all the showing before this court that was before the trial judge who granted the motion, and we are therefore in as favorable a position for considering the matter as was the trial judge. (Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8; Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752.)
The first contention made by the appellant is that no motion was made in the lower court and that the court therefore had no jurisdiction to make the order complained of.
This position is not well taken. The defendant gave notice of his motion, and the fact that the relief granted is the same as that which the notice indicated the party would apply for carries with it the presumption that the motion was made. On the other hand, the granting of a motion implies the making of a motion.
It was contended by the respondent in the lower court as one of the grounds for granting the motion that the plaintiff had failed to serve counsel for defendant with notice of his intention to move for default and to take judgment by default. In support of this contention, counsel cite see. 4892, Rev. Codes, which provides, among other things, that a defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, and that thereafter the attorney must be served with notice of all subsequent proceedings of which notice is required to be given. He now contends that by having demurred he had “appeared, ’ ’ and was entitled to notice of the application to enter his default and take judgment against him. In other words, he contends that he was not in default. In the first place, he had withdrawn his demurrer, and there was no subsequent appearance in the case. He was granted by order of the court five days in which to answer. During that period of time no default could be taken against him, but this left him in just
The only other question presented was that of the “mistake and inadvertence” of the defendant. The only showing whatever made as to inadvertence and mistake is contained in the-affidavit of Mr. Longley, and is as follows:- “That the time for answering said complaint thereupon expired on or about the 18th day of February, 1911, but that because of inadvertence and mistake the time for answering said complaint as fixed by this court was overlooked and permitted to pass without an answer having been filed.” It will be noted from the foregoing that counsel did not set forth any of the facts which constituted the inadvertence or mistake. It has been repeatedly held by this court in all matters of this kind that the facts must be presented to the court upon which the party relies to bring himself within the purview of the statute. In
We have likewise held in Bell v. Bell, 18 Ida. 636, 111 Pac. 1074, that where a party moved for a change of venue on the grounds of the prejudice and bias of the judge, he must state the facts upon which he predicates his charge of prejudice, and let the court determine their sufficiency, and the party himself cannot be the sole judge of the sufficiency of his facts.
And so in this case, the defendant did not set forth the facts which he claimed constituted the inadvertence or mistake, and consequently the court was without facts sufficient to set in operation his discretion in order to enable him to grant the motion. It may be said, however, that the inadvertence and mistake consisted in the fact that the defendant thought he was entitled to service of notice before the plaintiff could take his default and judgment against him. The answer, however, to that has already been given, namely, that he was not entitled to any such notice, and that he already had notice that he would be in default at the expiration of five days if he failed to further appear or answer.
For the foregoing reasons, it was clearly erroneous for the trial judge to vacate the judgment and set aside the default in this ease. The order appealed from is reversed and vacated,
