81 P. 860 | Utah | 1905
after making the foregoing statement of the case, delivered the opinion of the court.
The first question presented by this appeal is, was the showing made by appellant sufficient to entitle him to the relief demanded? Appellant cites and relies upon section 3005, Revised Statutes 18'98, in support of his contention that the court erred and that it abused its discretion in denying the motion to vacate the judgment and grant a new trial. The section referred to, so far as material here, provides that “the court . '. . in its discretion, after notice to the adverse party, upon such terms as may be just, relieve a party . . . from a judgment, order or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect.” The facts set out in appellant’s affidavit wholly fail to bring the case within the foregoing provision of the statute. On the contrary, they tend to show a deliberate intention on his part to abandon his defense and permit plaintiff to take judgment against him. He and his counsel were advised that the case would be called for trial on the day for which it was set, and he must have known that, unless he appeared and made his defense or obtained a continuance, a judgment, in all probability, would be rendered against him; but, instead of preparing and appearing for trial, he showed an indifference which is wholly inexcusable. In order to bring a case within the foregoing provision of the statute, the moving party must show that he has used due diligence to prepare and appear for trial, and present his defense, and that he was prevented from doing so because of some accident, misfortune, or combination of circumstances over which he had no control. If, however, the “record dis
Besides, appellant’s contention that be has a good and meritorious defense on tbe merits, which be has embodied in bis amended answer, is entirely without merit, as tbe matters therein pleaded could have been proved under bis first answer filed in tbe case, which consisted of a general denial. (19 Ency. Pl. and Pr., p. 411.)
And tbe further contention that appellant has a meritorious defense in bis plea of tbe statute of limitations, also contained in bis amended answer, and that tbe failure of bis counsel to interpose this plea, who, be alleges in bis affidavit, knew of this defense, but of which appellant was ignorant, is excusable neglect on bis part in not pleading it in bis first answer, is equally unavailing. (1 Black on Judgments, sec. 330; Elder v. Banks et al., 12 Kan. 238; Watson v. Voorhees, 14 Kan. 328; Gillespie v. Rogers, 184 Pa. 488; 39 Atl. 290.)
Appellant, according to tbe matters' set forth in bis affidavits, bad a good defense to tbe merits, and such a defense, as hereinbefore stated, could have been proved under tbe general denial; but be failed to avail himself of it, and now seeks to place tbe responsibility of such failure upon bis attorney. Tbe matters, however, set forth in tbe affidavits filed on behalf of respondent, tend to show that appellant before tbe trial showed less interest in tbe case, and was more indifferent as to its outcome, than bis attorney, and that tbe failure of bis attorney to be present when tbe case was called for trial was due to tbe fact that appellant bad advised bis attorney that, because of bis (appellant’s) inability 'to raise the means ncessary to present bis defense, “be
“The general rule is that the defendant is bound to set up every defense, legal or equitable, or both, which he may have to the action, and that he waives those not pleaded.” (1 Ency. PI. and Pr., p. 852, and cases cited.)
The fact that defendant would have lost his position and been thrown out of employment, had he taken time to attend the trial and put in his defense, cannot be accepted as excusable neglect on'his part. A party cannot thus intentionally remain away from a trial to which he is a party for the purpose of giving his attention to and performing other business duties of a purely private character, and, after judgment has been rendered against him, have the same set aside and the case reopened-on the ground of excusable neglect. If courts and judicial proceedings were thus conducted only as they
Appellant’s next contention is that the complaint does not state facts sufficient to constitute a cause of action, for the reason that the specific acts and means used to accomplish the seduction axe not alleged. The complaint charges that the defendant “wickedly seduced, debauched, and carnally knew” plaintiff. While the authorities are not harmonious on the question as to whether a complaint is sufficient in which the term “seduced” is omitted, but which alleges that the defendant “debauched and carnally knew” the woman, it seems that the weight of authority holds that such a declaration is sufficient to charge seduction. Our attention has not been called to a decision in which a complaint which charged as in this case that the defendant “seduced, debauched, and carnally knew,” etc., was held to be fatally defective; but, on the other hand, the authorities are numerous which hold that an allegation of this kind is sufficient. (19 Ency. Pl. and Pr., pp. 405, 406; Smith v. Milburn, 17 Iowa 30; Mighell v. Stone, 74 Ill. 261, 51 N. E. 906; Leucker v. Steileu, 89 Ill. App. 545, 31 Am. Rep. 104; Stoudt v. Shepherd, 73 Mich. 588, 41 N. W. 696; Watson v. Watson, 49 Mich. 540, 14 N. W. 489; Brown v. Kingsley, 38 Iowa 220; Rees v. Cuff, 59 Ind. 566.) The word “seduced,” when applied to the conduct of a man toward a woman, has a defined and well-understood meaning; and a charge that defendant “seduced, debauched, and carnally knew” plaintiff is tantamount to saying that he used undue influence, artifice, deceit, fraud, or made some promise to induce the plaintiff to surrender her chastity and virtue to him. (7 Words and Phrases, 6389, and numerous excerpts from cases cited.)
The motion was properly denied. The judgment is affirmed, with costs,
