Hanthorn v. Oliver

51 P. 440 | Or. | 1897

Mr. Justice Bean,

having stated the facts, delivered the opinion of the court.

Upon the facts disclosed by the record, we are ■of the opinion that the defendant was entitled to have the judgment opened up, and to make his defense, and that the denial by the trial court of his motion for that purpose is reversible error. The case presented is not one of negligence or omission on the part of either defendant or his counsel, but is an excusable mistake, growing out of an honest misunderstanding of the defendant as to the time of trial. His counsel told him on Monday that the case was set for Tuesday (meaning the following day), but he understood it to be Tuesday of the next week. This was quite a natural mit^uke under the circumstances, and to hold that on account thereof he should have no relief from the judgment rendered against him, but must lose the benefit of a good and meritorious defense, appears to us to establish, an unnecessarily harsh rule of practice. That he intended to make a defense is obvious from the fact that he was on hand, ready for trial, at the time he supposed the case was to be heard, and immediately applied to have the judgment vacated on terms. No laches or unnecessary delay can be justly imputed to him, and there is nothing in the record to indicate that he was not proceeding in the utmost good faith, or that plaintiff would have been seriously injured by vacating the judgment, and allowing the case to be tried on its merits. The action itself is brought upon a demand which appears, from the undisputed affidavit filed by the defendant, to have been long since barred by the statute of limitations, and, although he does not place his defense upon that ground, yet it furnishes a very cogent reason why he should be allowed the benefit of a trial upon the issue as joined. If the plaintiff’s claim is just, he cannot be wronged by opening up the judgment; but, if it is unjust, a very grievous injury will be done the defendant by allowing it to stand. Under such a state of facts, and where, as in the case at bar, the application is ’ made soon after the default, and no serious delay or injury could have resulted to the plaintiff, the defendant should, in our opinion, have been given an opportunity to defend upon such terms as the trial court might have deemed proper.

It is true, as claimed by plaintiff’s counsel, that an application to be relieved from a judgment under section 102 of the statute (Hill’s Annotated Laws), is addressed to the sound discretion of the trial court, and that its orders in the premises will not be disturbed on, appeal unless there has been an abuse thereof. But, as said by Mr. Justice Wolverton, in Thompson v. Connell, 31 Or. (48 Pac. 468): “The discretion here spoken of is. ‘an impartial discretion, guided and controlled in its execution by fixed legal principles;’ ‘a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to' subserve, and not to defeat, the ends of substantial justice’; and for a . manifest abuse thereof it is reviewable by an appellate jurisdiction,” — citing authorities. And “applications of this character,” says the supreme court of California in Watson v. Railroad Company, 41 Cal. 20, “ are addressed to the * * * legal discretion of the court in which the default has occurred, and should be disposed of by it as substantial justice may seem to require. Each case must be determined by its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule, however, in case where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application. In connection with its allowance, terms and conditions ought generally to be imposed upon the party in default, which, of course, should be more or less severe, as the particular circumstances would seem to warrant.” This seems to be a very clear and satisfactory statement of the rule: 6 Enc. Pl. & Prac., 165 et seq., and note; 1 Black on Judgments, § 354; 1 Freeman on Judgments, § 106; and a note to Burnham v. Hays, 58 Am. Dec. 389.

A reference to some of the adjudged cases will show its application. Thus, where the defendant’s attorney, being about to remove from town, called at defendant’s office, and left the papers in a case then pending with his bookkeeper, with instructions to tell the defendant that he would have to get another attorney on account of his departure, but the bookkeeper, being busy, and supposing the papers related to another matter, failed to give the message, and the case was set for trial, and judgment rendered therein without either the defendant or his attorney being present, it was held that the refusal of the trial court to set it aside was reversible error. Grady v. Donahoo, 108 Cal. 211 (41 Pac. 41). In Dodge v. Ridenour, 62 Cal. 263, judgment was rendered against the defendant in the absence of his counsel, who forgot the date set for the trial, and the order of the court overruling a motion to set the judgment aside was reversed by the appellate court. So, also, in Reidy v. Scott, 53 Cal. 69, it was held that a mistake of the defendant as to the day he was served with process was a sufficient excuse for failing to answer within the time required, he haying immediately applied to set aside the default; and that it was error for the court below to deny the motion. And again in Pearson v. Drobaz Fishing Company, 99 Cal. 425 (34 Pac. 76), the order was reversed because the court refused to set aside a judgment on a showing that it was obtained through a mistaken belief of counsel that the case would not be reached on the day it was set for hearing, because of other cases ahead of it on the calendar. So, also, where a defendant, immediately after service of process, commenced making preparations for his defense, but, owing to a multitude of pressing engagements, which shortly afterwards called him away from home, and out of the state, he mistook the day when his answer was due, and defaulted, it was held that the order of the circuit court in refusing to open up the default, and allow him to answer, was erroneous. Johnson v. Eldred, 13 Wis. 486. Many other cases could be cited, but these are sufficient. The order overruling the motion will be reversed, and the cause remanded to the court below, with directions to allow it, and set aside the judgment, upon such terms as may seem just and equitable.

Reversed.