90 P. 893 | Utah | 1907
This is an equitable proceeding commenced by the plaintiffs respondents in this court, against the defendant, appellant here, to vacate a judgment obtained against respondents in their absence by appellant in the district court of Salt Lake county. The complaint was attacked by general and special demurrer, which is now insisted on by appellant. Owing to the length of the complaint, covering nearly fourteen pages of the printed abstract, it is impracticable to make it a part of this opinion. The sufficiency of the complaint may, however, be determined by having recourse to the facts
Tbe facts found are, in substance, as follows: That for a long time prior to tbe time tbat tbe original action in which issue had been duly joined, and in which tbe judgment sought to be vacated was obtained, a rule of the district court of Salt Lake county, in which said action was pending, was in force, providing for three regular terms of court each year, and that during all of said time a certain rule, known as “rule 21,” was a rule of said court and was in full force and effect. This rule in substance provided that in Salt Lake county the clerk shall make up a trial calendar of civil actions five days before the first day of each term, including all eases at issue which shall' have been noticed for the term prior to the making up of said calendar; that notice of the placing of any case upon the trial list or calendar may be made by serving the opposite party or his attorney with a copy thereof, and filing the original with the clerk; that cases not placed upon the trial calendar in .accordance with this rule will not be heard unless for good cause shown. In furtherance of justice, the judge may order any particular case placed on the trial calendar for trial at any term of court. That the original case was placed on the trial calendar for the September term, 1901, pursuant to the notice referred to above, given by appellant, and the cause was, by mutual agreement of the attorneys for the respective parties, continued for that term, but without any order of court-. That no other or further notice was ever given or served in said cause by either party or their attorneys that said cause would be placed on the trial calendar, or that it would be urged for hearing or trial, and that no order from the judge was ever applied for or made by him to place the cause on the trial calendar for trial. That the list of oases for trial prepared by the clerk pursuant .to said rule 21 was not made of permanent record in the clerk’s office. That, notwithstanding that no notice or order ever had been served or made, the clerk, either by inadvertence or mistake, placed said cause upon the trial calendar for the succeeding term,
The first error assigned is that the complaint does not state facts sufficient to constitute a cause of action, in that it does not directly charge fraud or misrepresentation by which re
But it affirmatively appears from the record that appellant’s attorney recognized the rule, and served the notice required thereunder, and had the case placed on the list of cases to be set for trial at the first term it was at issue. As we construe the rule, it required either appellant’s attorney or the attorney for respondents to serve the notice required by that rule before each term of court to entitle the case to be placed on the list of cases entitled to be tried at that term,
“The appellate courts are much more reluctant to interfere where a default is set aside than in cases where the application is denied, as is evidenced by many decisions. The rule is analogous to that which prevails where new trials are granted, for, as is well known, appellate courts very seldom interfere with an order granting a new trial.”
Appellant’s counsel attack the findings of the court, and assert that a part of them at least are not sustained by the evidence. It could subserve no good purpose for ns to set forth in detail our reasons for holding that all the essential facts found are supported' by the evidence. It must suffice to say that, upon an examination of the entire record, we have found no difficulty in arriving at that conclusion.
Counsel also insist that the findings and evidence are not sufficient to warrant the relief granted by the court in an action in equity. With regard to this, we think that if a motion to vacate the judgment had been made immediately after the judgment was entered, and the evidence in this record had been made to appear in support of such motion; no one would seriously contend that the court abused its discretion in setting aside the judgment and permitting the respondents to defend the action on the merits, and we feel constrained to say that in such event no appellate court would have interfered with the judgment of the trial court in granting the relief. In view of the facts found by the court and supported by the evidence, that neither the respondents nor their attorney knew or had any intimation of the fact that judgment was obtained against them in their absence until after the statutory time had expired in which to attack the judgment by motion, and that neither of them was chargeable with negligence, we think the rule in granting relief both on motion and in an action should be the same. If it would have been just and equitable to grant the relief on motion, we think it is,equally so in the absence of equities in favor
With regard to tbe numerous authorities cited by appellant’s counsel, we remark here that it would subserve no useful purpose to discuss them or to cite those cited or other numerous authorities that might be cited. For every case that can be found where courts have refused relief another may be found where it was granted upon a similar state of facts. Each case, as is well said in 1 Black on Judgments, section 354, must be determined upon its own facts and circumstances. In those matters e.ourts must, be guided by the fundamental principles of justice and equity, and cases can do no more than to illustrate and apply them. While it may be conceded that there are some cases that attempt to lay down rules- to govern courts in granting or withholding relief in this class óf ciases, they all arrive at the same conclusions', which are that such matters must to a very large extent be left to the sound discretion of the trial court, and that this discretion will not be interfered with except in very clear cases of abuse, and that this doctrine applies most strongly to cases where, like in the case at bar, the court has exercised It in favor of requiring both parties to submit to a trial upon the merits. Trial courts would but partially discharge the important duties devolving upon them with respect to their discretionary powers if, they should fail in affording litigants every reasonable opportunity to be heard on the merits of their cases in case there is no culpable negligence upon their part. Appellate courts- would be equally recreant to the trust reposed in them if they attempted at long range to reverse all cases for some technical error. Appellate courts should be quick to correct errors which deprive a party of an impartial hearing, or where substantial rights
We are satisfied, after due consideration and reflection, that the action of the .trial court in this case does not fall within that class of cases where appellate courts have held that the granting of a trial on the merits amounts to an abuse of discretion.
The judgment therefore is affirmed, with costs.