129 P. 1052 | Mont. | 1913
Lead Opinion
delivered‘the opinion of the court.
Plaintiff brought this action to recover the sum of $178.50, which he alleges to be the reasonable value of services rendered by him as a civil engineer, at the request of the defendant and one J. A. McGowan, now deceased, in investigating and reporting upon the merits of a water-power site on the Missoula river, in Sanders county. The defendant was regularly served with summons and a copy of the complaint on March 4; 1912, but failed to appear and make defense. On March 26 his default was upon application of plaintiff duly and regularly entered, and thereupon, under the authority conferred upon him by the statute (Rev. Codes, see. 6719), the clerk entered judgment for the amount specified in the complaint, with costs. On March 28 the defendant through his counsel served and filed his motion to set aside the default apd vacate the judgment, on the ground that he failed to appear in the action by reason of his mistake, inadvertence and excusable neglect. The motion was
We think the court erred in opening the default. Mere
The order is reversed.
Reversed.
Dissenting Opinion
I dissent. Anticipating that parties to litigation might be careless, thoughtless or inattentive, and as a result that judgments by default might be taken against them in cases where they had meritorious claims or defenses which they intended to assert, the legislature enacted section 6589, Eevised Codes, for the express purpose of relieving such parties.
In considering the propriety of setting aside judgments obtained by default, these declarations of the courts have been repeated so often that they have become trite, if not axiomatic: “Every application of this character must be determined by its own facts.” “Every presumption is in favor of the trial court’s ruling.” “Whether the default should have been set aside was a matter within the sound, legal discretion of the court below, and with' its determination we may not interfere unless there was a manifest abuse of such discretion.”
In Greene v. Montana Brewing Co., 32 Mont. 102, 79 Pac. 693, this court reversed the district court because it would not set aside a default, and in the course of the opinion we stated the purposes of section 774, Code of Civil Procedure of 1895, now section 6589 above, and the principles which ought to control in disposing of applications for relief from defaults. Among other things we said: “ It will not do to say that if the defendant was, or its attorneys were, guilty of negligence whereby the default was occasioned, such default will not be set aside, for the very purpose of section 774 [6589, Rev. Codes] is to relieve a party who has defaulted, and that, too, through his own inadvertence or negligence, provided, however, that the inadvertence be not gross or the negligence inexcusable, ’ ’ and we quoted approvingly from Collier v. Fitzpatrick, 22 Mont. 553, 57 Pac. 181, the following: “The design and purpose of the statute is to further the administration of justice, so that the very right upon the merits may be determined, and'to that end to grant relief from excusable néglect in cases where diligence is shown in applying
In view of the declared purpose of section 6589 and the policy of the law as announced in Greene v. Montana Brewing Co., above, I think the action of the district court in opening this default and permitting a trial of the cause upon the merits should be affirmed.
In my opinion, the affidavit of defendant Willis offers some reasonable excuse for his forgetfulness. I do not think it neees