Olson v. Advance Rumely Thresher Co., 175 N.W. 192

Olson v. Advance Rumely Thresher Co.

175 N.W. 192 | S.D. | 1919

WHITING, J.

This is an appeal from an order refusing to vacate a judgment taken • against defendant in the absence of its attorney or other representative. That the court did not err in allowing judgment to be so taken is beyond question. But it does not necessarily follow that it did not err in refusing to vacate such judgment.

Defendant’s answer disclosed a meritorious defense. The cause had been noticed for trial at the November, 1918, term of circuit court in Charles Mix county. What preparations, if any, were made by defendant for a trial at that term does not appear. No term xvas held and the cause then stood for trial at the May, 1919, term, commencing on -May 13th. It stood as No. 18 on the calendar of such May term. Defendant’s counsel lived in Minnehaha county, which county is- situate some distance from Charles Mix county and in another judicial circuit. A term of court -was to open in Minnehaha county on May 13th. At this term 'defendant’s counsel had several causes for trial. He sought to arrange with plaintiff’s counsel that this cause be set for- trial on the first day of the term. Plaintiff’s counsel, while stating that such an arrangement would be agreeable to him, declared that it was beyond his power to make same. Defendant’s counsel then wrote the trial judge advising him that he had this case for jury trial at the coming' term; that opposing counsel were willing that it be set for trial on the first day of the term; that he had .causes for trial in his home county, where the term also began on May 13th; that he could arrange with the trial judge of his home county so that he could get away; and that he had witnesses coming from Minneapolis and La Porte, Ind.; and counsel asked the trial court to “put this on for the first case, * * * if you can.” The judge answered: “I cannot say whether or not this can be done. Parties ahead *335of you might object.” At the preliminary call of the calendar, defendant’s counsel was not present, neither were its witnesses or any of its officers; but a local attorney, who was to assist counsel in the examination of jurors but who knew nothing of the facts of the case and- was not to assist in the trial of the case, announced such case ready for trial at that term. On May 16th defendant’s counsel wired the trial judge advising him that he was engaged in the trial of cases that would take him the balance of the week, and that one of his sons was returning from France the next Tuesday; and he asked the judge to set this case for trial on Friday of the coming week — one week from date óf telegram. This telegram was not answered. The case was reached for trial on Monday, the 19th, and, with the facts, so far as known to the trial court, as above recited, and there being no appearance on behalf of defendant, the case was called for trial, evidence taken, and judgment entered for plaintiff. In addition to the above facts, the following facts, unknown to the court at the time of the trial, were disclosed by counsel’s affidavit on motion to vacate: Counsel took no steps, even after he sent the telegram of the 16th, to advise his client as to the situation, or to procure an. attorney who should represent his client either in presenting a motion for continuance or in trying the case, if such case should be called for trial in counsel’s absence. Counsel’s sole excuse for. such neglect was that he relied upon the belief that no advantage would be taken of him; that he would be given a reasonable time to get to the court with his witnesses; that he alone was familiar with the facts and in a position to try the case; and that, in view of the fact that this case was No. 18' on the calendar, he did not believe it would be reached in the regular order until he would be able to be in attendance upon the court.

[1-3] That counsel was negligent is clear — in fact, he .does not contend otherwise. We have thus presented these questions: Was such negligence imputable to defendant? If so, was such negligence excusable? If excusable, did the trial court abuse its discretion in denying the motion? Whether or not negligence is excusable is' a question of fact to be determined from the evidentiary facts shown. Where such evidentiary facts are an-*336disputed, this court is at liberty to determine whether or not they disclose' excusable neglect. We are of the opinion that the showing made did not excuse the. neglect of counsel. . That being so, the trial court had no discretion to exercise if such negligence is.to be imputed to defendant. That the negligence shall be found to be excusable is a “precedent to tlie exercise of any discretion.” Pettigrew v. Sioux Falls, 5 S. D. 646, 60 N. W. 27; Pepper v. Clegg, 132 N. C. 312, 43 S. E. 906. Apparently,, defendant’s counsel recognizes this to be the true situation he seeks to assume all the blame and asks this court to excuse defendant, citing the holding in Searles v. Christensen, 5 S. D. 650, 60 N. W. 29. As stated in the notes to be found in 27 L. R. A. (N. S.) 858:

“It is generally held * * * that the neglect of an attorney, not reaching the point of collusion or fraud, in permitting a judgment to be entered against his client, is the neglect of the client, and that such mere neglect cannot be successfully urged as a ground of relief.”

[4, 5] The facts in Searles v. Christensen brought that case within the exception noted in the above quotation — the false statement of the attorney was a clear fraud on Christensen. It was such a fraud as some courts hold to be an “unavoidable casualty” (Anthony v. Karbach, 64 Neb. 509, 90 N. W. 243, 97 Am. St. Rep. 662), and certainly any “inadvertence” resulting from such, a statement would be “excusable.” There are a few courts, prominent among which is the North Carolina court, which have at times refused to impute mere negligence of the attorney to his client. We think, however, no ca^se can be found where a court has so ruled except where the client has been shown to have been .free of negligence; and the burden is certainly upon a party, seeking relief from the results of his attorney’s negligence, to show that he himself has not been negligent. 15, R. C. L. 709; 23 Cyc. 941; notes 80 Am. St. Rep. 264-271; notes 96 Am. St. Rep. 108, 109; Taylor v. Pope, 106 N. C. 267, 11 S. E. 257, 19 Am. St. Rep. 530; Norton v. McLaurin, 125 N. C. 185, 34 S. E. 269; Manning v. Roanoke & T. R. R. Co., 122 N. C. 824, 28 S. E. 963.

*337No affidavit'-of any.officer" of defendant- cbrporation was .presented to j the ’ trial court' upon the indtion to vacate the judgment. It therefore does not appear, that defendant had -ever done anything;-more than to employ an. attorney to .represent -it. The trial court was not'adviped that defendant had taken such steps that, if its counsel had been in attendance upon" court, . defendant's witnesses ¡would also have been there: Tor .all that appears, even though there -had been- no neglect of this case by 'counsel, -still thére "would'‘have been- a practical default by defendant.

[8, 9] It follows therefore, that .defendant, has npt made such a showing as to justify this'court-in refusing, to hold it liable'for "the negligence of its counsel: - The negligence not being excusable, the' trial court' had no discretion; but, if it had s,uch discreton, there was no such abuse,.thereof as would require • this court to reverse the holding of the trial court. 'From the 'decision in Pettigrew v. City, supra, down to date, this court has 'held that it would- not reverse a trial court in its rúling upon a -motion to relieve a party from a judgment alleged to have been .taken against him through his -mistake, inadvertance, surprise, or excusable neglect, unless there was a clear abuse of the discretion vested in the trial court.

The order appealed from -is affirmed.