285 P. 668 | Mont. | 1930
Citing: Crawford v. Pierse,
"No inference will be drawn in favor of the complaint where the objection has been raised [as here] in the trial court." (Crawford v. Pierse,
Defendant's illiteracy and that of her husband and their lack of understanding of American ways and court procedure, together with the fact that the action was brought in her Christian name, was sufficient under the authorities to warrant the court in setting aside the judgment. "Illiteracy of a defendant or ignorance of the English language or course of judicial procedure, or of his rights and duties where such ignorance prevented him from discovering that legal proceedings had been taken against him, until after the rendition of the judgment, furnishes a sufficient showing of excusable neglect for failing to defend the action and justifies the vacation of the judgment." (34 C.J. 301, note 45; State v. District Court,
The neglect of the defendant in this action cannot be any worse than neglect of counsel by reason of carelessness or rush of business, and in all the recent cases decided by this court it has considered such statements as sufficient excuse to warrant setting aside default judgments. (Voelker v. Golden Curry C.Min. Co.,
There was no showing made by the plaintiff in the action and no papers are on file as appear from the transcript that the defendant ever had notice that a default was entered, the first notice being only of the entry of the judgment two *29
days prior to her application, and where application has been made within six months after the entry of the judgment it is in sufficient time to come within the limitations of the statute. (State ex rel. Happel v. District Court,
Plaintiff has appealed from the order setting aside the default and permitting defendant to answer; her counsel attack the sufficiency of the showing made and contend that the application was not timely, as section 9187, Revised Codes of 1921, requires such application to be made within six months after entry of default.
1. We enter upon the consideration of the questions thus[1] presented bearing in mind that the matter of setting aside judgments and orders lies within the sound legal discretion *30
of the trial court and that the reversal of such an order may be had only on a showing of "manifest abuse"; that judgments by default are not favored, as it is the policy of the law to have cases tried on their merits in order that justice may be done between the parties, and, to this end, in applying our statute granting this discretion to the courts, they should exercise and maintain that liberal spirit which prompted the legislature to grant the discretionary power, and, consequently, this court requires a stronger showing of abuse to warrant a reversal of an order granting relief than is required in case the court refuses to do so. (Pacific Acceptance Corp. v. McCue,
Further, in entering upon the consideration of an appeal, this[2] court always indulges the presumption that the conclusion reached by the trial court is justified and that no error has been committed; the burden rests upon the dissatisfied party to overcome this presumption. (Ringling v. Smith River Dev. Co.,
Under these well-established rules, the order of which complaint is made here must be affirmed if, upon any ground, the conclusion of the trial court is justified.
2. The first question, in logical order, for determination is[3] as to the sufficiency of the complaint, for, if insufficient, the court was without jurisdiction to render judgment therein; in such case the pronouncement of the court is, in fact, no judgment and may be stricken at any time without reference to the limitation prescribed in section 9187, and without further showing than the presentation of the judgment-roll. (Crawford v. Pierse,
The complaint, with only unimportant recitations omitted, alleges: *31
"I. That, at the times hereinafter mentioned, plaintiff was, and now is, a chaste * * * married woman residing at 486 1/2 East Park Street, Butte, * * * Montana."
"II. That * * * on the 26th of May, 1928, at 504 East Broadway, Butte, * * * defendant, in the presence of * * * divers * * * women, * * * with the intent to slander and defame the good name and reputation of this plaintiff, said of and concerning this plaintiff, `You are a wide whore.' * * *
"III. That the said false and slanderous words were uttered * * * in the English language and understood by the persons to whom said words were spoken, with the express and malicious purpose * * * to hold this plaintiff out to the world * * * to public contempt and ridicule."
This complaint is a model of brevity, but it is defective in certain particulars which will be hereafter considered; undoubtedly it would be held fatally defective under the strict rules of common-law pleading applicable to such a case, but happily those ancient rules which rendered such an action a contest between pleaders and the real matter in issue of secondary importance have been swept aside by our Codes.
Under our rules of pleading the complaint, in any case, need[4] only contain "a statement of the facts constituting the cause of action, in ordinary and concise language" (sec. 9129, Rev. Codes 1921), and, in this connection, it is specifically provided that, in libel and slander cases, it is no longer necessary to state extrinsic facts for the purpose of showing the application to plaintiff of the defamatory matter out of which the cause of action arose, "but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff" (sec. 9175, Id.).
In considering the sufficiency of a pleading, "its allegations must be liberally construed, with a view to substantial justice between the parties" (sec. 9164, Id.), and "the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed *32 or affected by reason of such error or defect" (sec. 9191, Id.).
Even so, these liberal rules of construction do not permit a court to read into a pleading a substantial allegation which has been omitted therefrom. (Conrad Nat. Bank v. Great NorthernRy. Co.,
As the complaint does not plead special damages, it is first important to determine whether the charge set out in the complaint is actionable per se.
In this state "slander is a false and unprivileged publication[5] other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business; * * * 4. Imputes to him impotence or want of chastity; or 5. Which, by natural consequence, causes actual damage." (Sec. 5691, Rev. Codes 1921.) Words used in the Codes in the masculine gender include the feminine. (Sec. 16, Id.) Our statute, therefore, declares that a false and unprivileged publication of a charge of unchastity is slander.
At common law, imputing unchastity to a woman was not actionable per se. This condition of the law was declared "barbarous" and "cruel" by English judges of high rank (Roberts
v. Roberts, 5 Best S. [Q.B.] 384), but, being without power to legislate, they were helpless in the matter. Quoting from the cited case, this court, in Ledlie v. Wallen,
However, the error of the court is manifest from a reading of section 5691. It is divided into subdivisions separated by semicolons, which have the same effect as though the conjunction "or" was used (Webster's Internat. Dictionary), and means slander is a false publication which charges any person with crime, or imputes to him the present existence of an infectious, contagious or loathsome disease, or imputes to him (or her) unchastity. Since that decision was promulgated, without reference to it, this court has clearly indicated that the unqualified charging of a woman with unchastity is actionable per se. (D'Autremont v.McDonald,
The epithet "whore" charges a want of chastity and is actionable per se. Here it is preceded by the adjective "wide." The character of an epithet may be modified by an adjective; for example, if A calls B "a dirty dog" the charge is opprobrious, but if the characterization is "a lucky dog," *34 it is quite the contrary. We have, however, searched the authorities in vain for a meaning of the word "wide" which would take the sting out of the defamatory word used, and consider the sentence used, as a whole, defamatory and actionable per se.
The sentence alleged to have been used is set out in haecverba and stated in the second person; yet it is not alleged that the plaintiff was present at the time and place the charge was made, and the subsequent allegation is that it was spoken "of and concerning" the plaintiff.
In Corr v. Sun Printing Publishing Assn.,
The remaining defect pointed out is that the complaint does[6, 7] not allege that those present understood the words used as applied to the plaintiff. It is true that the complaint goes no further than to allege that, because the words were spoken in the English language, what was said was understood by those present, and it is also true that, before a recovery may be had, it must appear that at least one person present knew that the plaintiff was meant, since, otherwise, there would be no "publication" and consequently no slander. The question then arises as to whether or not proof of the understanding of third persons may be made under the general allegation, authorized by section 9175, that the defamatory statement was made "of and concerning" the plaintiff. *35
It was originally held in California that such a statute did not do away with the necessity of alleging that the persons who heard the words knew that the plaintiff was meant (De Witt v.Wright,
In Harris v. Zanone,
As Harris v. Zanone was decided before we adopted the statute from California, we must assume that our legislature adopted it as construed in that state, and as that construction seems to be consonant with the liberal rules of construction laid down by our Codes for our guidance, we hold that, under section 9175, above, the extrinsic facts of the presence of plaintiff and the understanding of the third persons need not be alleged. The complaint is therefore sufficient.
3. Was the application for relief from the default entered[8] timely? While the application filed recites the entry of default on June 4, 1929, the date of judgment, on default entered July 13, 1928, it is only directed to the default, and the order, of which complaint is made, recites that the "default" is set aside, without reference to the judgment.
Section 9187, Revised Codes 1921, grants courts discretion "to relieve a party or his personal representative from a judgment, *36 order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order or proceeding was taken."
The statute does not mention defaults, but in California, under an identical statute (sec. 473, Code Civ. Proc.), it is held that the taking and entering of a default by the clerk or the court, at the instance of the adverse party, is a "proceeding taken against" party in default, within the meaning of the section, and its entry, and not that of the judgment, fixes the beginning of the period of six months within which a motion to set aside the default must be made. (Title Ins. Trust Co. v.King Land Imp. Co.,
The history of the statute is reviewed in 14 Cal. Jur. 1060-1065, and therein a doubt is suggested as to the rigidity of the six months' period, citing Consolidated Construction Co. v.Pacific Electric R. Co.,
But a reading of these opinions discloses that in neither case was the court discussing the rule laid down by the statute, but a rule applied by analogy in proceedings brought independent of the statute. In so far as the statute is concerned, it is as inflexible as to the maximum time as any of our statutes of limitations. (Title Insurance Trust Co. v. King Land *37 Imp. Co., above; In re Morehouse,
The cases cited, however, demonstrate certain situations in which relief may be granted independent of the statute. Such a situation arises when extrisic fraud is practiced upon a party to an action, inducing him to forego filing an answer within time. (Bullard v. Zimmerman,
Affidavits herein filed in support of defendant's motion[9] allege that "during the month of June, 1928 [the complaint having been filed on the 5th of that month]," the plaintiff informed a third party that "she did not intend to do anything with the action, * * * that she intended to let it drop," which information was communicated to defendant, who replied that she "would not think anything more about it," and that, as a result of this information, defendant did not consult anyone as to the steps to be taken and paid no further attention to the matter until she learned of the entry of judgment a year later. It is at least doubtful whether the showing made would be sufficient to invoke the aid of a court of equity; but regardless of that question — not here presented — such a showing cannot toll the statute and thus warrant the relief here sought. (See Meyer v.Lemley,
Another question suggested to our minds, but not presented to counsel, is as to whether or not the judgment might have been set aside and defendant permitted to be heard with reference to damages to be awarded, regardless of the entry of default, but no such order was made; the order from which appeal is taken merely sets aside the default, and therefore this question cannot now be determined.
Although reluctant to do so in such a case as this wherein the court has opened the way for a hearing on the merits, we are forced to the conclusion that the court manifestly abused its discretion. *38
The order is reversed and the cause remanded, with direction to overrule the motion to set aside the default.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.
Rehearing denied March 17, 1930.