152 P. 477 | Mont. | 1915
delivered the opinion of the court.
In a suit to quiet title, pending in Teton county, service of summons was made upon some of the defendants, but not upon Lewis D. Matheson, who resided in California. Charles G. Bynum employed Bair & Verge, attorneys at Chouteau, and through some misunderstanding these attorneys were led to believe that they were retained to enter a general appearance for all the defendants. After demurrer had been overruled, an answer was prepared and filed on behalf of the defendants, except Matheson and Lee Bayliss, and on September 3, 1913, the default of these two was entered. In January following proof was submitted and a decree entered agreeable to the prayer of the complaint. In May, 1914, Matheson moved the court to vacate the decree and set aside the default as against him, and in the notice specified, among other grounds, that he had not been served with summons, had not appeared, or authorized or ratified any appearance on his behalf. The motion was noticed for hearing upon the affidavits of Matheson, Charles G. Bynum and John G. Bair, the proposed answer of Matheson, and the files in the case. After a hearing the court granted the motion in an order as follows: “It appearing to the satisfaction of the court that the defendants Lewis D. Matheson and Lee Bayliss have never been served with process in said action, and they have never authorized any attorney to appear for them, or either of them, and neither of them has appeared himself: It is hereby ordered that the decree heretofore entered herein on the 19th day of May, 1914, against the defendants Lewis D. Matheson and Lee Bayliss, be and the same is hereby vacated and set aside, and the default of said defendants Lewis D. Matheson and Lee Bayliss be and the same is hereby vacated, and the said defendant Lewis D. Matheson is hereby given leave to file his proposed answer, which was submitted to the court at the time said motion was heard. ’ ’ Prom that order plaintiffs appealed.
We shall not attempt to account for the numerous [1] contradictions which appear in the record. It was incumbent upon
The period of six months mentioned in section 6589 within
It is insisted that the affidavit of Matheson does not sufficiently negative the idea that he had authorized an attorney to appear for him. This court does not view with favor distinctions of
The trial court was in error, however, in setting aside the
The court refers to the decree as entered May 19, 1914. The
The cause is remanded to the district court, with direction to reform the order by excluding therefrom all reference to defendant Lee Bayliss, and, as thus modified, it will stand affirmed. The appellants will pay the costs of the appeal.
Modified and affirmed.