Simpkins v. Simpkins

14 Mont. 386 | Mont. | 1894

Per Curiam.

The motion of defendant in this case to open the default was upon the ground of alleged excusable neglect on her part. The Code of Civil Procedure provides that “the court may .... relieve a party, or his legal representatives, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.” (§ 116.)

Defendant contends upon her motion that, if there were any neglect on her part in allowing default and judgment to go against her, it was excusable. It is perfectly evident from all the facts shown by defendant’s affidavit, and by the correspondence between her counsel in La Crosse and Deer Lodge, that she was anxious to defend this action. There is nothing whatever looking to any intention to neglect it or allow it to go by default. Her attitude was that of vigilance from her very first knowledge of the commencement of the action up to the time when she learned that the judgment had been rendered. At that time she came at once from Wisconsin to Deer Lodge, a distance of one thousand two hundred miles, and promptly commenced proceedings for the purpose of setting aside the judgment and obtaining leave to defend the action. She had at once, upon receiving the summons by mail, consulted an attorney at her home in Wisconsin, and through him had secured the services of an attorney at Deer Lodge. She was cognizant of the letters written by Mr. Burroughs to Mr. Whitehill. From them it clearly appears that she was extremely vigilant and attentive to every step in the case. When finally the judgment was rendered against her she had at that time a verified answer in the hands of her Deer Lodge attorney, setting up a complete and meritorious defense.

Wherein was defendant’s negligence? It was sought to be argued that it was in not at once employing other counsel upon the receipt by her of Mr. Whitehill’s letter of July 24th, in which he said that unless she accepted certain terms of compromise, which he set forth, he would have nothing more to do with the case. It appears by Mr. Titus’ affidavit, in contradiction of defendant, that at this time the defendant and her La Crosse attorney knew the names of Deer Lodge attorneys other than Mr. Whitehill. It is claimed by plaintiff tliat it was negligence in defendant, in that upon the receipt of this letter she did not at once employ some one else. But it must be remembered that Mr. Whitehill then had charge of her case, and that he had in his possession the verified answer which she had sent to him to file. Furthermore, Mr. Whitehill never informed defendant that he had withdrawn from the case. He had simply told her that he would do so if she did not accept those certain terms, which she claims she had never authorized him to offer to plaintiff. The most that appears is that Mr. Burroughs had said at one time that he thought those terms might be accepted. Burroughs telegraphed for Mrs. Simpkins, to Whitehill, that she did not accept the terms, and requesting Whitehill to file the answer and go on with the defense. Then it was that Burroughs wrote fully, setting forth, by reference to the correspondence, that defendant had not authorized the offer which Whitehill thought he had power to make. This was July 28th. This letter Mr. Whitehill never opened. Nor did he open the two others which followed it; but, on the other hand, he returned them unopened to the writer. We are of opinion that the defendant and her La Crosse representative had reason to expect at least that these letters would be opened and read by Mr. Whitehill. They explained fully that the offer which Mr. Whitehill claimed that he was authorized to make to plaintiff’s attorney had not been so authorized. The defendant had the right to believe that when Mr. Whitehill received these letters he would read them, and that, having read them, their contents would lead him to file her answer, or place her in some position to secure other counsel, or at .least notify her of his withdrawal from the case.

No question was raised as to Mr. Whitehill’s fees, and, the defendant having the right to believe that her Deer Lodge counsel would read the letters following July 28th, there was no reason apparent to her why he would leave her in default. If Mr. Whitehill had read the unopened letters he would have read therein the defendant’s statements that he (White-hill) was mistaken when he considered that he was authorized to make the offer to plaintiff’s attorney which he" mentions in his letter of July 28th, and the nonconcurrence in which proposition by defendant was the cause of Whitehill’s threatened withdrawal. Then Mr. Whitehill, or any other fair attorney, if he still persisted in withdrawing from the case, would have notified defendant, and put her in a position not to suffer a default by his withdrawal. That is to say, this is what defendant, sitting in her home at La Crosse, one thousand two hundred miles from the court, had reason to believe; and, so having reason to believe, she was not negligent in acting as if she so believed.

We can see no negligence whatever of defendant which was not absolutely excusable; and indeed it is difficult to find any negligence on her part at all.

Under all these facts of the case we are of opinion that it would be a reproach upon the administration of- the law to allow this judgment to stand. Divorce laws and procedure in some jurisdictions are often a subject of adverse criticism. If such a proceeding as the one before us is allowed to pass with approval or unchallenged such criticism would be wholly just.

It is urged that the merits of the motion are affected by the fact that plaintiff has remarried since the rendering of the divorce judgment. Yes, plaintiff has remarried, according to the record, and he did this before the ink was dry upon the judgment divorcing him by default from the woman who had been his wife for twenty-five years, who had borne his children and reared them to near their majority, and who had kept the home and hearth for him and his children during all these years. And this judgment, obtained without a hearing on the part of defendant, was upon a complaint not charging cruelty or adultery, or any of the graver offenses against the marriage contract, but upon a complaint alleging desertion only, and a desertion after twenty-five years of married life— a charge by plaintiff, upon the truth of which all the circumstances of this case throw the gravest suspicion. In this connection it is appropriate to notice the verified answer which was tendered with the motion. That answer not only denies the allegation of desertion, but it emphatically denies that plaintiff is a resident of the state of Montana, and it sets up facts which, if true, show that he is a resident of the city of La Crosse, Wisconsin. It alleges that the plaintiff was a railroad conductor, and that he was employed in different places, and that, after having had many homes at divers times, they finally settled in this home in La Crosse; that plaintiff always treated it as such, and that he spoke of it as such in the letters which he wrote to defendant and his children; that he wrote to them in affectionate terms, and visited them up to a short time before commencing this suit, and up to that time sent them money and presents; and that never did he intimate his claim of defendant’s alleged desertion, or of his intention to claim a residence in Montana. Now, under all these circumstances, for plaintiff to claim that his remarriage, in this hot and indecent haste, is pertinent upon this motion is a sorry sort of a reply to the motion of defendant setting up the pitiable facts disclosed by this record. Nor is the situation of the person whom plaintiff purported to marry on August 35th a consideration that can set aside the rights of this defendant. Such condition is not of defendant’s creation or her fault.

Tlie order denying the motion to open the default is reversed, and the case is remanded, with directions to the district court to grant the application, and to set aside the judgment, and allow defendant to file her answer and make defense.

Reversed,

All concur.