Morse v. Callantine, 19 Mont. 87

Morse v. Callantine

19 Mont. 87 | Mont. | 1897

Pemberton, C. J.

The only question we deem it necessary to determine in this case is as to whether the district court erred in refusing to open and set aside the judgment by default entered in the case against the defendant Calamine. If the court in this matter abused that sound discretion which should control in such cases, then its action was erroneous. To determine this question we must consider all the facts and circumstances of the case as they were presented to the court at the time of the ruling on the motion to set aside the judgment by default. From the facts as shown in the affidavits of both of the defendants, and contained substantially in the statement, we are of the opinion that Callantine believed, and had a right to believe, that counsel had been employed by his co-defendant to attend to the case for both defendants to the end of the litigation. If he was guilty of negligence in this respect, it was certainly excusable negligence. As soon as he learned that the counsel employed in the case had withdrawn as far as he (Callantine) was concerned, and permitted judgment by default to be entered against him, he took immediate steps to *93have the same set aside. But there is a more serious question affecting the discretionary action of the court disclosed by the record. Huling’s separate answer contained an absolute defense for himself and Callantine as well. Not only so, it set up such a state of facts, which, if true, would show it to be a serious wrong for any court to enter judgment in favor of plaintiff against either defendant. The court’s attention had been called to this answer by Huling’s counsel asking judgment on the pleadings. The court, properly enough, instead of granting this motion, gave plaintiff three days to deny the facts pleaded in the answer. For some reason plaintiff declined to reply, preferring seemingly to pursue the easier course of dismissing his action as to Huling, and taking a judgment by default against Callantine, who was technically, but we think excusably, in default. Callantine tendered with his motion to set aside the default an answer containing substantially the same facts which had been pleaded in Huling’s answer, and which plaintiff declined to traverse by replication when the court gave him leave to do so. Under all the circumstances of the case we think the court should have opened the default, and permitted appellant to answer, and defend the suit, and that the action of the court in refusing to do so was error.

All cases of this kind depend largely upon their own facts. It seems to us that a judgment against the appellant for a large sum of money, under all the circumstances of the case, "would operate as an injustice, and that a refusal of the court to open the default and permit the appellant to defend the suit, when the circumstances showed such injustice, was such an abuse of judicial discretion as to constitute reversible error in the case. Counsel for respondent contends that, as there are three appeals in this case, to-wit, an appeal from the judgment, an appeal from the order refusing to open the default, and an appeal from the refusal of the court to modify the judgment, and that as only one appeal bond is given, such bond is insufficient to give this court jurisdiction of the case, 'this point is not raised by counsel for respondent by a motion to *94dismiss, but in his printed brief. It is urged also in his oral argument. We do not think the question of the insufficiency or invalidity of the appeal bond is properly presented. The bond, in our opinion, is evidently not absolutely void; and, if the bond should be considered for any reason defective, we are of the opinion that the appellant would have the right, on a motion to dismiss the appeal on account of any defect therein, to make and file, pending such motion,. a sufficient bond. See Spreckles v. Spreckles, (Cal.) 45 Pac. 1022. And besides this court has not only held to the doctrine that, if an appeal bond was defective, a sufficient one might be filed pending a motion to dismiss on account of such defect, but in Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, this court held that “but one cost bond is required in appealing from a judgment and an order, where such appeal is consolidated into one record. ’ ’

There are other assignments of error in the record. The appellant contends that the court erred m overruling the demurrer of the defendants, among other things. But we think it unnecessary to pass upon these questions, as the case must go back with instructions to sustain the motion to set aside the judgment entered by default against the appellant. The question of sufficiency or insufficiency of the pleadings may also again be presented to the court, or the appellant may rely upon the merits of his case as disclosed in his answer, which, under this decision, he will be permitted to file. The judgment and orders appealed from are reversed, and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed.

Hunt and Buck, JJ., concur.