134 P. 911 | Utah | 1913
Tbe appellant by this appeal complains of a ruling denying bis motion to set aside a judgment rendered on a bearing in its absence, and to grant a new trial.
Tbe showing made is this:
Tbe suit was commenced and tbe judgment rendered in Salt Lake County. In tbe early proceedings tbe defendant was represented by an attorney residing in Sanpete County. He bad filed a demurrer to tbe complaint, which by consent was overruled. He then filed an answer putting tbe case at issue. Owing to duties of a public nature, tbe attorney was unable to fully take care of tbe defendant’s interest, and thereupon, and on tbe 1st of October, 1912, tbe defendant,
“We may want to reply to the answer. Our time has expired; but, if we find it necessary to do so, we presume we ■shall have your permission, provided it does not in any way interfere with your preparation of the case. The case has not yet been set for trial.”
The letter was written October 4th. The Salt Lake attorney for the defendant and plaintiff’s attorneys were friendly, and had theretofore in other cases granted each other permission to file pleadings out of time, and the former, believing, as he deposed, that a reply would be filed before the case was called for trial, relied on the latter giving him notice when the case was set for trial, though neither an ■express nor an implied promise to do so was made, nor is it made to appear that they otherwise were so obligated. By reason of this, and also because the president of the defendant at the time of the employment of the Salt Lake attorney told him that the case probably would be compromised and ■settled, the Salt Lake attorney, being employed only as associate and local counsel to assist in the case, if called for trial, did not give the matter the attention he otherwise would have given it. No reply was filed.
So the matter stood until the 1st. of January, 1913, when the case, on a previous posted notice in the clerk’s office of the ■setting of cases, was set for trial on the 7th of March following. On that day the plaintiff appeared with its witnesses ready for trial. Neither the defendant nor either of its attorneys appeared. The case was called; the plaintiff made its proof and took judgment in accordance with its complaint.
Before the motion for a new trial was made, the Salt Lake attorney asked plaintiff’s attorneys and its agents, heretofore referred to, to consent to a setting aside of the judgment and to the granting of a new trial, and stated that if they would do so the case could be tried in a few days. They declined “unless the defendant would assure the plaintiff that such judgment as might be rendered would be paid, and that the plaintiff would be placed in the same position as
“If you are willing to put us back where we were before judgment, we are willing, as a matter of accommodation, to open this case up and try it.”
The only reply was:
“The difference between now and next Wednesday (when defendant’s counsel stated he would be ready for trial, if a new trial were granted) is not going to put your people in any materially different position, so far as the assets of the defendant are concerned.”
The court ruled that the showing made to vacate the judgment and to grant a new trial was insufficient, and on that ground denied the motion.