*1
However,
un-
testimony.
Dr. Petersen was
statements him that he had been work-
ing. There also medical testimony
Albright compres- had suffered mild fracture,
sion and that had fracture healed.
completely competent evidence
Substantial
supports the findings the Commission Albright compression suffered mild
fracture which Al- quickly, healed
bright was able to return to his usual occu
pation within a reasonably period short that Albright has show failed to disability his current resulted from the
work accident. As to the actual cause of present
claimant’s disability, the Commis
sion noted that it apparently from resulted However,
the automobile accident. there is requirement that the Commission deter
mine the actual cause of a disability;
Commission need only determine whether
claimant has sustained his burden of show
ing that injury was caused work-
related accident.
Affirmed.
272 mistake, grounds оf inadvertence neglect as provided
excusable
I.R.C.P.
60(b).
A
was held on that motion
testimony
at which
was received and there-
after the motion was denied.
may
judgment
A default
be set
inadvertence,
mistake,
aside on the basis of
surprise
neglect.
or excusable
I.R.C.P.
55(c), 60(b). motion
aside a
A
to set
default
court with a
judgment presents the trial
Corp. v. Kel
factual
Hearst
determination.
10,
ler,
(1979).
P.2d 66
100
592
Idaho
Where,
here,
alleged
is
mistake
relief,
be
such must
factual
grounds for
legal and must be conduct
rather than
reasonably prudent
be
of a
might
expected
Strom, Longe-
Daniel Mark Johnson of
under
same circumstances.
person
Johnson,
teig &
for
Craigmont,
defendant-
Keller,
v.
supra; Johnson
Corp.
Hearst
v.
appellant.
642,
Noland,
(1957);
588
78
308 P.2d
Idaho
Gregory
Dennis L. Albers and
FitzMau-
v.
71
Orange Transp.
Taylor,
Co.
Idaho
rice, Grangeville,
plаintiffs-respondents.
for
(1951). The trial court here
Our concern here is twofold: setting-aside er the trial court erred in not only responsive paper by plain- filed judgment, the default and thus al- reply counsel was that entitled tiffs’ lowing the case to be decided on the mer- counterclaim, filed three after defense days rule its —and not on a technical procedural affidavit. known counsel’s For reasons for what penalizes party one himself, plaintiffs’ counsel declined appar- the fault casts an of his contradicting any to execute affidavit two, рarty; ent windfall to the other the affidavit of the statements made in first ignore whether this should Court *4 Particularly, and that defense counsel. question and reach its own determination. court, the trial which should have concerned I address both questions. well, coun- was defense and this Court as Wisenor’s motion supported, was arrangement recit- statement that sel’s be, it could attorney’s his affidavit of No- acceptable in the affidavit was ed 6, vember explained 1979. Therein he how extend addi- agreed who tiffs’ counsel entirely default came to be taken. It is 24th of October. time beyond tional clear (1) therefrom1 that had counsel counsel’s state- of defense integrity reached an understanding defense sup- understanding wholly ment of the defaulted, counsel would not see his client transpire. did the events which ported by but that рlaintiffs’ counsel would send out a default send out Plaintiffs’ counsel did notice of default which would not be acted on notice, day 24th as the setting up the upon until an opportu- defense counsel had entered. have the default which he would nity to contact his client and either file went, hearing and no withdraw, (2) answer or defense came and The 24th Therefore, my the time of contact client. 1. The affidavit of Wisenor’s counsel reads as my follows: was distinct under- this conversation it standing pursue Defendant, representing that Mr. Albers would “I have been Wisenor, 24, July Jimmie Joe since of 1979. his Motion for Default on October during my representation pursue That the course I the matter in he would not have on several occasions discussed the case that he would the immediate future. Further Albers, with Dennis for the time in which to contact allow me additional my Plaintiffs’. Answer or to client and then to file an October, day or about the 11th “On and that I would be Withdraw from the case 1979, again Dennis Albers called me to dis- any hearing again on a in advance of notified cuss the case. He stated his clients were Judgment against my Motion for a Default go anxious to have the matter settled toor client. lawsuit; therefore, forward with the was discussion, consequence I of this “As going to send out a Notice of Intent to Make day my drafted a letter to client Application hearing for Default and that a 24, hearing 1979 was set for October Default would be set on the matter for October agreed. further I had no not conducted as 1979. regarding this case Mr. Albers contact with “1 informed Mr. Albers that I would either 2, 1979, I when received until November file an Answer or Withdraw from the case as Judgmеnt copy entered October of the against my soon as I could further discuss the matter client, Jimmie Joe Wisenor. my client. 1 him that I further informed hearing Notice of the I not receive did could not be certain when the Answer or held on October the Motion for Default my Notice of Withdrawal would be filed and A.M. 1979 at 8:40 that could not be certain that such would indicate, of this case “As the records filed before the date set October Wisenor, Defendant, did file Jimmie But I assured him Motion for Default. my in this matter on October immediate Answer that the matter would receive A.M., approximately hour and attention. 1 made certain that Mr. Albers One 10:00 entry allow a Default Twenty understood that I would not the Default minutes after long against my as I to be entered client so Judgment was filed at before the representing arrangement was him. This P.M. on October 4:00 acceptable Albers and he to Mr. November, 1979.” “Dated this 6th necessary to to allow me this time additional “A motion Yes. place plaintiffs’ took ever —nor again strong hearing. noticed for “Q Do recall how it was that you evidence, objective going wholly unrefuted time twelve were mentioned at that days by plaintiffs’ counsel. given? why days twelve providing give get “A time Plaintiffs’ instead Just them things his version of and his the conversation done.” clients, understanding, brought one of his counsel, how- On examination defense Mrs. to the her hearing, had ever, questions she asked these In this Court counsel testify. gave these answers: testimony, seeks to make much of her con- “Q was set for the Now the tending contradictory such was knew, right? you 24th as far as understanding fense counsel’s state- Uh, “A hum. produced by ment of what agreement was did “Q on the 24th It didn’t come off the conversation in- attorneys of the two it? volved —a conversation which to her was “A No. what heard she of what she one “Q know you why1 Do attorneys say. Mrs. Reeves established her time I attorney’s guess.” she was in office on “A Just allow more added.) October 11th to how lawsuit was (Emphasis see her *5 progressing. Her direct was: testimony testimony only cover- Mrs. whose At I “Q that time do recall that you deposition-size much of which pages, ed five placed a telephone call? had, then, admittedly from repetitious, was “A Yes. call, hearing telephone end of only one a “Q you And did things overhear the 24th was set as “understanding” phone that I said on that call? “for on the of part date further action with,”
“A Yes. talking I but conceded party was hearing there on “Q Now do was that date you recall whether or not partiсular a I “just guess.” date was to allow more Her set for further ac- tion the part I party negative testimony, was talk- like the well known ing with? heard, crossing being whistle was Yes,
“A say, it that from she attorney was what heard her my set to ... nothing extending was said about defense “Q How exactly was done? beyond counsel’s time the 24th. admit- She What did I say? hear ted she did not what defense counsel “A You told Mr. Johnson that you said.2 go would up ahead set it and that it be, think, would I on the 24th. You what, deciding the first if place, your counted off on calendar and the any, consideration the court would trial
time and the my date and to under- properly give testimony, to such his order standing that’s the day it would be. show gave any, doesn’t that he other than it “Q recollection, Did say, in your order, that he admitted it. The drafted anything about extending past the time counsel, plaintiffs’ and рresumably drawn the 24th? so as to plaintiffs’ favor the interests where No. “A possible, testimony does not state of “Q Do you have a specific recollection Mrs. Reeves Nor I see was considered. do of that? be, any reason why such would should be. trick, a please Use of witness who a heard one side of but understand that I telephone pitiful. call beyond If days things the witness heard need new that to work person holding her my you own tell the out with client —after have which will phone my on the other end the line that a default answer or a notice of withdrawl. I don’t hearing you notice would be sent noticed for want to take default while I still am 24th, way representing witness would have no of hear- the defendant.” ing party say, “Fine, the other do that should testimony faith with
In the second such another to a zeal- place, simply appease should not have or received. been offered ous client. made, objection Admittedly no Plaintiffs’ counsel in his brief filed in this experienced nonetheless court Court this statement: interesting makes would be expected to be little influenced “Respondent [sic, appellant, offers WisenorJ a lay person’s understanding what two filing no reason for late attorneys agreed procedural as to a upon disregarding of the Notice Intent has lay matter where all the witness heard Default, Application to Make other than conversation, is one side of the and then understanding his of a conversa- attorney’s to she negative, testifies as what didn’t attorney.” tion with That will plaintiff’s hear. attorneys indeed remarkable to most place, In the third recollection of Mrs. “attorney’s will readily whо see that contradictory Reeves was not to that which of a understanding conversation defense in his If counsel stated affidavit. controversy tiff’s this attorney” what
plaintiffs’ counsel wanted contradict de- counsel, Moreover, all about. practice fense the better would swearing who offered no counter affidavit forthright have him to do it manner— any different conversa- version affidavit, his own account of his own was agreed upon, tion led what conversation, expla- and his own the critical argue does not even that defense counsel hearing as was no why nation Instead, prevaricating embellishing. 24th, dif- assuming October recollection that, thereof, argues assuming truth counsel that fers from that defense against it was a issue resolved contested would be no that there counsel, suppоsedly the trial court defense all, until de- and no default unless and pitted counsel’s affidavit having defense fense counsel withdrew. testimony Reeves’ of what she against Mrs. Seizing heard, already as discussed. is, course, proverbial plain *6 Hearst, is advanced that argument face, the as reflected in the Dooley’s nose on in a issue decided credibility was factual gives which no discussion trial court’s order favor, the and, although trial plaintiff’s of defense counsel’s affida- of the content a made such to have pretend no court did not vit, gave trial court also it that the determination, one nor is there consideration, upheld factual and hypertechnically finding.” “implicit record, it was an defendant the for the reason that the default predicate as a is also relied on against Hearst “actively to defend” ample had time smattering of value- that a proposition not so. This complaint and did do contradictory and sense, testimony, hardly only that less provided but would make affidavit of counsel, supportive of the largely that both had ignores one counsel, unqualified witness fense from an attempting quite actively and counsel on but one end what she overheard as to dispute to without defendant be- settle the conversation, is suffi- telephone (and pay file out two-sided required to ing making an this from filing fee) preclude cient to Court sum for a with- substantial of the issue. justifi- evaluation just independent is not out to trial. Such going gener- is a experience, unusual able but Hearst, read, that where teaches properly encouraged, rath- al and one to be practice, on a cold is made the trial court decision discouraged. er than its record, own may exercise this Court is the matter. passing here patently decision discretion court’s does 67. The Court good relation- 592 P.2d at facile, and Idaho destructive so, converse always and should however. The con- not do exists ship generally to say, If this so. That necessarily counsel. mat- is not to between also tinue exist live did, partly evidentiary said that record counsel it where as defense ter stood thereto, deposi- or it to affidavit appears testimony partly be a no response with precluded is not tion, court breaking appellate of one classical case here, making strengthens from its sidered independent own evalua- the affidavit tion, and in Idaho has so. it attorney by establishing this Court done defendant’s that Co., Shingle Saccomano North Idaho 73 was at the solicitation of defense counsel (1952). this sending P.2d out of of default that notice case, however, particular is no reason agreed upon, in order to move rule, to dwell upon the off of His applicability reluctant defendant first base. simply for testimony the reason that the version of the telephone conversation Mrs. does up Reeves not measure to con- question was: with, flicting offering genuine any con- time, “That, your person- that affiant to, tradiction that contained in the affidavit Johnson, ally telephoned attorney, Dan counsel, of defense supports but instead Idaho, previously Craigmont, who had Factually missing latter. affidavit representing Jimmie Joe Wisenor. counsel, from regard in which time, to your At that affiant stated attor- presumеd is to be that could he have con- Johnson, something must ney, Dan tradicted the affidavit of defense done in the form of either settlement he would have especially done where At filing responsive pleadings. so— alternative was to the ex- resort time, told your affiant was Dan tremely testimony doubtful aof witness Johnson, that Jimmie Wisenor was who heard one side of conversation in a cooperating, with Dan Johnson or his realm to her unfamiliar. firm, and that we would have do some- thing formally. your At that affi-
In this regard note must be taken of that
advised Dan Johnson that he would
ant
portion of the Reeves’ brief wherein it is
apply
Court for a
above-entitled
stated
testimony
the oral
of Mrs.
October, 1979,
default on the 24th
Reeves “together
plaintiff’s attorney’s
out
and sent
a notice to
effect.”
affidavit
tended to
the prоof
conflict with
support
put
of the motion
in appel-
forth
Although
applica-
the affidavit states
attorney’s
lant’s
affidavit.” Brief for Re-
entry
tion for
of a default would be made
spondent at
above,
24th, as
al-
mentioned
though plaintiffs’
ample
counsel had
oppor-
It is
true
there is a plaintiffs’ attor-
respond
tunity
supporting
affida-
ney’s
record,
affidavit in the
but it is equal-
vacate, plaintiffs’
vit on the motion to
coun-
ly true that it was filed before the
filing
explain,
did not then
not to this
sel
has
defendant’s motion to
vacate
default.
so,
why,
application
if that was
day,
The clerk’s transcript which I look at shows
*7
this,
the
was not made. Of all
Reeves’
being
the affidavit
both
and
dated
filed on
although
thát
brief contends
30th October,
the
whereas
the motion
understanding
been
have
a mistaken
as
set aside default was filed by defense coun-
agreed upon,
the trial court has
what
sel on November 6th. As
pointed
earlier
against
found the mistake issue
defense
out, plaintiffs’ attorney did not file a re-
counsel, and such is
end of it.
sponsive
Moreover,
affidavit.
order
trial judge
however,
clearly
That,
recites that
only
my understanding
is not
“supporting
[sic,
affidavits
Accept
argument
of the law.
the fact
affidavit]
admitted
testimony”
oral
plaintiffs’
were considered.
that defense counsel
as to
final agree-
counsel was mistaken
The affidavit of plaintiffs’
attorney
telephone,
ques-
ment reached over the
solely
the file
purpose
for the
obvious
tion remains —Was it
less a mistake?
explaining
judge
just how
mistake,
if a
should the innocent liti-
And
plaintiffs
requesting
came to be
a default
attorney’s
gant be
of his
mistake?
relieved
whereas a notice of default
in the record
today,
thought
Until
answer not to be
disclosed that the
rep-
defendant
being
in doubt.
counsel,
resented by
naming
such coun-
affidavit,
sel. That
if it was
plaintiffs’ attorney
responsive
considered
Had
filed
judge,
the trial
and if it
properly
affidavit,
con-
and had it stated his version as to
“In
understanding
telephone
addressing
noncompli-
of the
conver-
the effect of
sation,
rules,
against
the most that could be said
procedural
ance with
statutes and
Turner,
defendant was that
the mistake was not
73 Idaho
the Court in' Stoner v.
469,
that of
but that of de-
(1952),
247 P.2d
said:
per-
fendant’s
Just
counsel.
what would
regu-
object
The
of statutes and rules
rely upon
suade the trial court to
the recol-
lating procedure
pro-
is to
in the courts
against
lection of one
as
another
justice.
mote the administration
me,
in this situation esсapes
especially
which fix the
Those statutes and rules
application
where the
for default was not
procedural rights
time within which
are
made on the date for which it was noticed
expedite
to be
intended to
asserted are
think,
up. Seemingly strange,
might
some
disposition
of causes to the end that
up
ap-
that neither counsel showed
at the
will not be denied
inexcusa-
justice
pointed
judge
time. At best
the trial
But,
unnecessary delay.
except
ble and
should have considered
matter at or
mandatory
which are
as to those
standoff,
near a
wherein he would have
regulations
jurisdictional, procedural
guided by
been well
the fact that defendant
applied
not be so
as to defeat
should
swiftly
learning
entry
moved
on
is,
primary purpose, that
the dis-
their
Turner,
117,
default as in
v.
73 Idaho
Stoner
position
of causes
their substan-
(1952),
247 P.2d
where
unanimous
delay
prejudice.
tial merits without
thirty years ago
Court almost
said in re-
expression
found
again
philosophy
versing: “Their affidavits are in direct con-
Rules of Civil Procedure.
in the Idaho
tradiction as to what was said between
1,
stated the
promulgated,
as first
Rule
them.
If
equipóse
this leaves the matter in
which continues in the rule
following,
conversation,
as to the
it still appears appel-
now amended:
lant
promptly
discovering
acted
the de-
in the
govern
procedure
These rules
fault.”
Id. at
general rule is to
granting
incline toward
default,
the oth-
taking the
party
relief in order to bring
judgment
about
hand,
preju-
may attempt
er
to show
on the merits.
if
is set
dice will result to him the default
5-905, C.,
“The purpose of Section
I.
thereof,
lack
was also
Prejudice,
aside.
to provide
relieving
a means of
a litigant
Bunn,
where it
supra,
discussed in Bunn v.
from the harsh consequenсes of a strict
pointedly
was
observed
this Court that
application of the time requirement.
question
the trial court “did not address the
appear
should
defaulting party
that a
any prejudice.”
99 Idaho at
relief
seeking
guilty
has not been
of in- P.2d at 1247.
difference or unreasonable
delay
equally
true of
case. That
this
he
promptly
has acted
and diligently in
judge gave
the trial
no consideration to
relief,
seeking
and that the
party
other
prejudice
probably
by plain-
occasioned
not unduly prejudiced or deprived
having
tiffs
never made such a contention.
advantage to which he may
properly
Nevertheless,
it is a critical element for a
(Citations
entitled.”
omitted.)
when
court’s consideration
asked
set
In Davis
showing
made in support of
aside a default. That the trial court went
the motion to set aside the default was the
unmindful of that element is more under-
defendant’s contention that he understood
standable, however, than the same failure
no further action would be
against
taken
opinion,
deign
in the
which does not
Court’s
him without further notice. Similarly, to-
either,
de-
notwithstanding
do so
day we have counsel for Wisenor stating his
quotes extensively
fendant’s brief
from Da-
understanding of the
special
limited and
Rathbun, supra,
vis v.
relative to there be-
purpose of the default
stating
notice and
ing
showing
any prejudice.
whatever of
his belief of
agreement
that he would
brief,
sim-
urged
As
in defendant’s
have an opportunity
the date
beyond
speci-
and none was
ply
any prejudice,
fied therein to either answer or withdraw.
plaintiffs
claimed. Concede that
were zeal-
In Davis the Court reversed the refusal to
action, and
ous clients who wanted
weren’t
default,
set aside the
noting that
the de-
ongoing negotiations
satisfied with the
fendant “believed in good faith that no
taking
counsel. Add to that
further action would be taken in the case
and,
fault,
question of whether
ignoring the
without notice to him. He
delay
did not
appropriate,
directly
such action was
move
when the default judgment was taken but
effect of the default. Which was
acted promptly to have the same set aside.”
produced
what? It
an answer and the case
Id. at
“has had time to A brief comment needs also to made actively defend be plaintiffs’ Complaint, and did not do so relative paragraph to the final ” ... . It intelligent is difficult to make an is no opinion declaring Court’s there appraisal of the import language, of this showing of a meritorious defense —which it nothing appearing like it in of the any required policy is said is because of a earlier cases. It appears though plain- would be “founded on the doctrine that it counsel, order, tiffs’ who drafted the an idle exercise for a court to set aside a if, conceived of the fact, justicia- notion that in there is no real situation paralleled Keller, that where a plaintiff is said not ble controversy.” Corp. Hearst to have actively prosecuted, referred to in is for statement. It supra, policy cited 41(b), to prosecute, justiciable I.R.C.P. failure or I.R. is true that there is “no real Such, 40(c), any language C.P. failure to take action within in Hearst. controversy” rate, however, year. any appears recognized one At there to be has to as an inad- be applies showing no similar rule which to a defend- vertence in choice of words. A ant, require- and for certain such abstract true statement a “meritorious defense” is the has application controversy" no to a defendant who has is ordinari- ment. “Justiciable Hearst, retained counsel and whose counsel is “ac- used in the context as used in ly not tively” attempting taking dispute to avoid refers to a profession court’s time and effort for by seeking parties appropriate out a which is between determination, settlement. It is difficult judicial distinguished understand just what an attorney might contingent, do in order to or difference of dispute from avoid the recrimination of not “actively or abstract character. See hypothetical fending” his Perhaps blowing (5th 1979). client. ed. Dictionary Black’s Law bugle required, the direction of the are as is enemy camp Actually adverse might generally suffice. cases controversy. an actual See to I.C. 10-1201. annotated §
Our reаl and concern here has to do with surrounding always the circumstances insisted What the court has sending out of the notice of default. Cer- is that on a motion to set aside a default affidavit tainly plaintiffs’ counsel could at time defendant should tender either an over, declare that or an answer. In an affidavit of negotiations were of merits pleading always practice could demand a so that the case merits it has been the for And, would be at issue. state both his defense and his after three or four the affiant to out, trying something months of to work is meritorious. An belief that his defense plaintiffs’ deny counsel would be entitled to should either admit or and an affirm- something appear- allegations complaint, more than a notice of of the ance, enough with or a motion to dismiss. An answer ative defensе should be stated least indicate it preferred. would be is what to at exactly particularity (or defendant’s counsel merit. promised notice have some withdrawal), and that what he exactly Hearst, then, note important it is provided. support nothing there to an
It did which amounted attorneys clear that the two motion defense, would agree that a notice of default affidavit of a meritorious opin- Although the sent. If one considers the affidavit of answer was tendered. it, the defendant it also becomes clear that ion fails to reflect account, and open on an was defendant’s counsel who asked Hearst was sued was this: holding there your gist the notice of default: “At that the real of our Johnson, owing money denied affiant was told Dan that Jim- “Defendant never 100 Idaho cooperating, рlaintiff mie Joe Wisenor was not claimed.” there, then, firm, was intended Dan or his and that we would P.2d 68. What Johnson the defendant that where something formally” (Empha- say only have to do was to for is money sued added.) clear no claim that equally sis makes no defense has owing, declined to contradict in fact not tiffs’ logic is no the rule that there attorney. sworn statements of defendant’s shown —hence *10 Assuming, arguendo, in a in court allowing bordering defendant back where foregone is a conclusion will plaintiff absurd, complaint and answer necessarily prevail. still Defendant’s affi- to a plaintiffs judg- would have entitled the davit in Hearst attempt was directed to an pleadings as to defendant’s ment counterclaim, upon a meritorious remained the issue of liability, still there felt to be compulsory in nature.3 damages, regard аlways in which it has cannot be said case now of the be the law that a defend- thought under review. The an- only defendant not in day ant should have his court. swered with proper denials and admissions defendant, Here, however, whose attor- in complaint, direct reference to the but did not have been the mistak- ney may may or prior so even to the entry judgment. attorney may whose attorney, en that, Not but only plaintiffs, making no misled, mis- enjoys not have been challenge sufficiency whatever to the of the court, and is having day fortune answer, Moreover, reply filed a thereto. judgment which in- assessed a substantial the answer which in paragraphs through $2,000 commit- punitive damages cludes III requisite made the denials and admis- occurred ting battery found to have $512 sions in complaint, reference to the set physi- when he “did with force and violence forth in paragraphs through specific IV X injure Alberta cally intentionally detailed allegations relationship as to the Reeves.”4 parties, leading to the problems altercation, allegations and defendant’s having to the brawl and as to his not inten- SUMMARY tionally struck the Mrs. plaintiff, Reeves. case, itself, big This in and of is not a Thus complaint was not a notice As I said at the important. case. But it is
pleading, detailed, quite effort, outset of this opinion of the was equally so. These were indeed adverse era, Court marks the end of one parties with genuine controversy involv- beginning of the other. ing many issues which could be re- by solved a trier of the Henceforth when following facts states un- trial on the merits. der oath that he believed or understood that judge 3. Reeves, Hearst the plaintiff, district set aside the de- Alberta on the head with primarily fault on the basis that the defendant’s great causing force and violence immediate counterclaim would be lost if he were not al- injury and dizziness to said Alberta Reeves. respond, noting lowed to also defendant’s “That, part the action on the of the defend- promptness moving. intentional, ant was wilfull and unlawful. Thereafter, day February, on the 21st charge complaint The part: of the was in sought Alberta Reeves medical atten- defendant, Wisenor, “That the Jimmie Joe through Soltman, M.D., tion Donald J. was. at forth, injury the time of the hereafter set Idaho, Grangeville, sustaining medical bills in County, Idaho, a resident of Idaho re- $12.00. the amount of siding tiff, therein; plain- White Bird that the plaintiff during “That the the entire month Reeves, Alberta is likewise a resident of February, sustained dizziness and Bird, County, White Idaho. striking headaches as a result of the unlawful “That, prior injury to the date of the here- defendant, general and suffered dam- forth, plaintiff, Reeves, inafter set together Alberta ages, physical pain anguish and mental and is husband, Reeves, with her Ben were damaged $1,500.00. in the sum of engaged operating Bar, the Arrowhead doing things “That in hereinabove al- Wisenor, a tenant of Jimmie Joe the defend- Count, leged in this ant, the defendant acted mali- present and all on the 18th ciously, guilty disregard and was February, wanton at the Arrowhead Bar rights feelings plaintiff, of the premises. Reeves, thereof, “That, Alberta subsequent reason to a conversation be- tiff, exemplary Alberta Reeves plaintiffs, tween the demands defendant and the within punitive defendant, Bar, damages against the alleged fendant, place Arrowhead Jim- at the time and Wisenor, $3,000.00.” previous paragraph, mie in the sum of the de- Wisenor, response Jimmie Joe in defendant’s answer was: without cause provocation, unlawful “The attacks Defendant and Plaintiffs plaintiff, striking Alberta purchase the said the Plaintiffs would the Defendants *11 agreement had an with counsel that a default notice would be sent in order to center,
move a case off dead it was taken,
also that no default would be
the court in its unbridled discretion is free relief, is,
to withhold unless the other
attorney admits having had the same
understanding. is an unenjoyable pros-
pect and unfortunately evolves out of a case
where neither the facts and circumstances
nor long established law offer any support.
UTAH LIGHT
Appellant,
IDAHO UTILITIES PUBLIC COMMISSION, Respondent. Application the Matter UTAH Ap-
POWER & LIGHT COMPANY
proval Proposed its Electric Rate Regula-
Schedules and Electric Service
tions.
Nos. 12922 and 12956. of Idaho.
Supreme Court
5,May 1981. 23, 1981.
Rehearing Denied June seriously jeopardize inventory July then such beer and or hand 1978. by inventory by liquor was counted and valued license held business. “Therefore, day February, on the 26th as TWENTY-FIVE HUNDRED DOL- ($2500.00), premises paid by LARS Defendant entered the which was a termination of the Plaintiffs to the Defendant. discuss and effectuate prior by agreement “The to the 5th of March. Defendant was notified the Plain- February heated words were ex- tiffs on or about “At this time Plaintiff, changed agreement Plaintiffs Ben Reeves wished to terminate the between Wisenor, Defendant, business, they operating Jimmie being exchanged be- as of March in blows which resulted persons. “The It is the Defendants Defendant felt that it would not be these tween Plaintiff, prudent management understanding Alberta business to allow the operate struck at this however Plaintiffs to continue to was also the business Reeves they intentionally strike the after had notified him of their intention Defendant did not Plaintiff, agreement. do Reeves and would not to terminate their This is be- Alberta lascera- suffered facial cause the Defendant felt the Plaintiffs would The Defendant so. law, likely injury result of the blows then be more to violate a rule or as a tions Plaintiff, regarding regulation Ben of the State of Idaho him inflicted beverages, sale of alcoholic which would Reeves.”