This is an appeal by Johnston Grain Company, a corporation, hereinafter referred to as plaintiff, from an order of the district court for Buffalo County vacating and setting aside a default judgment entered against Delmar Morfitt and T. & M. Construction Company, a partnership, hereinafter referred to as defendants.
T. & M. Consruction Company, a partnership composed of Joseph Tridle and Delmar Morfitt, had a contract with the plaintiff for the erection of 10 grain bins for which plaintiff was to furnish the steel. They had partially, erected one of the bins .but were delayed because plaintiff had not been able, to- furnish all of the necessary steel. While so delayed, on May 4, 1959, a severe windstorm wrecked the partially completed bin.
No service was had on Joseph Tridle, who had left the state. Service was had on Delmar Morfitt on June 13, 1960. He took the summons to his attorney’s office, and, when he found the attorney was on a vacation, left the summons with the attorney’s secretary. Morfitt paid no more attention to the matter. Answer day was July 18, 1960. On August 4, 1960, one of plaintiff’s attorneys, in the absence of Judge E. G. Reed, the local district judge, had a default judgment, entered against Delmar Morfitt and T. & M. Construction Company, a partnership, by Judge Norris Chadderdon, who was temporarily in Buffalo County. Parker, defendants’ attorney, did not return to his office until August 2, 1960, and did not see the summons left by Morfitt until after the default judgment was entered. However, he was in the courthouse at the time of its entry and knew that it had been entered immediately thereafter and while Judge Chadderdon was still at the courthouse.
On February 20, 1962, defendants filed a petition after term to set aside the default judgment and for a new trial. Trial was had on January 9, 1963. The court specifically held that if the application was not properly sustained on March 24, 1961, the court again finds that the default judgment should be set aside. The trial court made no finding of fraud, but found the fact that the matter was not disposed of during term was the fault of the court and not the moving party.
The plaintiff alleges nine assignments of error. We will consider only two of them. The first one we consider is that the trial court erred in abusing its discretionary powers in ordering the default judgment set aside in its order of March 24, 1961, when there were no affidavits, documents, or other supporting evidence. Certainly the trial court was without power to enter the
order of March 24, 1961. Our law is well settled that a court of general jurisdiction has inherent power to vacate or modify its own judgments at any time during the term at which they are pronounced, and such power exists entirely independent of any statute. See Bradley v. Slater,
Here, however, defendants’ application, while filed in term time, was not heard until March 24, 1961, which was after the judgment term had ended. Our law is equally clear that a court has no discretionary power or authority to vacate a judgment on application made within the judgment term but considered and ruled on at a subsequent term. See Lyman v. Dunn,
The order of March 24, 1961, setting aside the default, was clearly erroneous unless defendants’ application can be construed as a motion for a new trial. Can defendants’ application be construed as a motion for a new trial? There is no question that a motion for a new trial timely filed may be heard at a subsequent term. In Workman v. Workman,
The second assignment which we consider is that the trial court erred in overruling plaintiff’s motion for a directed verdict at the close of defendants’ evidence on the hearing on the petition filed after term to set aside judgment and for a new trial. After the adjournment of the term at which a judgment was rendered, the trial court has authority to grant a new trial for any
As suggested, the application herein cannot be construed as a motion for a new trial in accordance with section 25-1143, R. R. S. 1943. The question then is, can the petition filed February 20, 1962, be sustained under any of the other provisions of section 25-2001, R. R. S. 1943? There are only two provisions which it might be argued are applicable. They are as follows: “* * * (4) for fraud practiced by the successful party in obtaining the judgment or order; * * * (7) for unavoidable casualty or misfortune, preventing the party from prosecuting or defending; * *
Defendants’ evidence, viewed in its most favorable light, establishes that plaintiff and plaintiff’s counsel knew that Parker was defendants’ counsel and had their records; had visited with him before the action was filed about defendants’ business affairs and financial circumstances; knew that defendants had been adjudicated bankrupt; and knew that defendants had a valid and justiciable defense to the original petition. There is no dispute but that plaintiff’s chief counsel told Morfitt after the default was entered that he was attempting to recover from the insurance company and did not intend to make any recovery against him personally. There is no evidence, however, that plaintiff’s counsel ever agreed to set the judgment aside or inferred that he would do so or did anything after the default was en tered which prevented the defendant from having the application heard. Plaintiff’s counsel did write Judge Reed a letter requesting that the matter be set for hearing, and testified that he orally requested a hearing from the judge on other occasions but was never able to get one. This, however, cannot be charged in any way to the plaintiff.
It is defendants’ position that the common courtesy which should prevail among members of the bar in any locality dictates that the default should have been set aside by agreement. It is true that in Barney v. Platte Valley Public Power & Irr. Dist.,
The question of the courtesy which should prevail among members of the bar is a proper matter to be considered by the trial court in exercising its discretion to set aside a judgment in term time. Here, however, the court lost its right to set aside the default because the term at which it was entered had expired.
Bankruptcy is an affirmative defense and must be pleaded. Even though plaintiff’s counsel may have believed counsel who had been representing the defendants would appear for them, he was under no legal obligation to call his attention to the action. This was the responsibility of the defendants. If counsel had appeared of record in this case, that would be a different
matter. Defendants’ counsel was not without fault. He was present in the courthouse when the default was entered, and learned of it before Judge Chadderdon left the courthouse. Prompt action at that moment would have avoided the present situation. Further, defendants’ counsel
In Lyman v. Dunn,
For the reasons given, the order of the trial court vacating the default judgment is hereby vacated and set aside, and the cause is remanded with directions to reinstate the judgment of August 4, 1960.
Reversed and remanded with directions.