132 P. 576 | Idaho | 1913
This is an appeal from an order refusing to vacate and set aside a judgment. The action was for divorce. Plaintiff resides in Blaine county, Idaho, and defendant resides in Salt Lake City, Utah. Complaint was filed August 2, 1911. Summons was served and the defendant made general appearance by demurrer filed October 10th. Demurrer was thereafter overruled and answer and cross-complaint were filed November 13, 1911.
Defendant denied the material allegations of the complaint, and in a cross-complaint alleged her desertion by the plaintiff and prayed for a decree of divorce from plaintiff and for certain property and attorneys’ fees, etc. On the 14th of November the plaintiff’s counsel filed a demurrer to the cross-complaint and also a motion for judgment on the pleadings. Up to this time defendant had been represented by the law firm of Evans & Evans, of Salt Lake City, and the pleadings filed in the case had been signed by them and no. attention had apparently been paid to the provisions of see. 4198 of the Rev. Codes of this state, which requires that “all pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state, who shall state his residence or postoffice address,” etc. No question, however, was raised by plaintiff as to the failure of the pleadings on behalf of the defendant to be signed by a resident attorney. On November 15, 1911, it appears that Evans & Evans wrote to Hon. C. O. Stockslager, addressing their letter to Hailey, Idaho, requesting him to associate himself with them as counsel in the case. This letter was' forwarded
The motion to vacate and set aside the judgment is made upon the same grounds and based upon the same facts set forth in the motion for a continuance. A motion for continuance is reviewable upon appeal from the judgment. (Sec. 4807, Rev. Codes; 1911 Sess. Laws, p. 367; Reynolds v. Corbus, 7 Ida. 481, 63 Pac. 884; Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108; Maple v. Williams, 15 Ida. 642, 98 Pac. 848; Storer u. Heitfeld, 17 Ida. 120, 105 Pac. 55; Miller v. Brown, 18 Ida. 200, 109 Pac. 139; Walsh v. Winston Bros., 18 Ida. 772, 111 Pac. 1090; Richardson v. Ruddy, 10 Ida. 151, 77 Pac. 972; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Holt v. Gridley, 7 Ida. 416, 63 Pac. 188.) Where a motion was made for a continuance and was denied, and no appeal was taken from the final judgment subsequently entered, a court should not grant a motion made to vacate and set aside the judgment which is made on the same grounds and based upon the same facts contained in the motion for continuance where such motion is made after the time for appeal from the judgment has expired. In other words, if it was no abuse of discretion to deny the motion for continuance, then it could be no abuse of discretion to deny a motion to vacate and set aside the judgment where the motion was based upon substantially the same facts and circumstances set forth as a basis of the motion for continuance. (1 Black on Judgments, see. 304a; Bernhard v. Idaho Bank & Trust Co., 21 Ida. 598, 123 Pac. 481; United States v. Throckmorton, 98 U. S. 61, 25 L. ed. 93; Reed v. Cross, 116 Cal. 484, 48 Pac. 491.)
Considering, however, appellant’s motion to vacate the judgment as an independent motion, and upon the theory that the same facts wfere not covered by the motion for a continuance, we would still not be able to hold in this case that there was an abuse of the discretion vested in the trial court in denying the motion. A motion like this is addressed to the sound, legal discretion of the court, and when that discretion has been brought to bear upon all'the facts
Here the appellant waited for nearly three months after making a general appearance in the case before employing anyone in this state or anyone convenient to the court to represent her. The court appears to have been in session for some time and was about to adjourn. Appellant must have known that the court was in session and that her case was likely to be set for trial at any time. (Dusy v. Prudom, 95 Cal. 646, 30 Pac. 798.) It appears that she also wanted a divorce, and was seeking the same kind of relief that the respondent was seeking. She, however, was seeking the settlement and adjudication of certain property rights which she alleged existed.
Another thing which may have had some influence 'with the trial court is that it appeared by affidavit made by one of respondent’s counsel that the respondent had remarried prior to the hearing on this motion in the district court. A court
We are of the opinion that the judgment in this case should be affirmed, and it is so ordered. This being a divorce case and the wife being the appellant, it is ordered that the costs of this appeal be paid by the respondent.
