JAMES W. SPRIGGS аnd HAZEL SPRIGGS, dba JIM‘S MARKET, Plaintiffs and Respondents, vs. KAY GOODRICH and MRS. KAY GOODRICH, Defendants, UNITED STATES OF AMERICA, Intervener and Appellant.
No. 2678
Supreme Court of Wyoming
July 19th, 1955
Petition denied November 8, 1955
285 Pac. (2d) 1103
HARNSBERGER, Justice.
This is an appeal from an order denying intervener‘s
Plaintiffs had obtained а money judgment against the defendants in an action at the commencement of which a writ of attachment issued and the holder of the proceeds of a sale of defendants’ sheep was garnisheed. The garnishee reported the money was held by him for the account of defendants and an agency of the United States, the garnishee having been notified the sheep had been mortgaged to that governmental agency. The United States was permitted to intervene for the purpоse of asserting its right to the money by virtue of the mortgage but when the matter was heard its claim was dismissed. Plaintiffs then had execution upon its judgment and a second garnishment was had upon the same garnishee and for the same monies. This time, however, the garnishee reported that prior to the service of the second garnishment he had been notified the defendants had assigned their entire interest in the funds to the same agency of the United States which had previously claimed as a mortgagee. Again the Unitеd States intervened, setting up the assignment, and claiming its prior right to the money.
Plaintiffs denied the claim, set up other defenses, and issue was joined between plaintiffs and the appealing intervener. On April 30, 1954, the court entered its order, setting the matter for trial on June 2, 1954. When the intervener failed to appear at the time fixed by that order, plaintiffs moved the court for its order dismissing the intervener‘s petition. The motion was granted, and the court‘s order therefor was entered. Within eight days thereafter and during the same term, the intervener having learned that its petition had been dismissed, filed its motion to vacate the order of dismissal, but after a hearing, the court denied the same. The appellant insists that because of certain circum-
Appellant has represented that when the issues upon its petition in intervention were joined, its counsel were instructed by the court to prepare and submit a form of order, setting the matter for trial, leaving blank the hour and date of the setting, as these were to be fixed and inserted by the court. In consequence, the intervener did prepare such an order and transmitted the same to the judge of the district court, together with a “covering” letter. Thereafter the intervener received back the covering letter from the clerk of court, bearing a stamp indicating the letter had been received and filed, but the intervener did not and never has received from the clerk or otherwise any order or copy of an order showing or indicating the matter had been set for trial. Notwithstanding this, it appears the court did, in fact, complete and enter the order, setting the trial for June 2, 1954, as above stated. The clerk transmitted a copy of the order to the plaintiffs, but there is no showing that a similar copy of the order was ever sent to the appellant or its counsel. Thereafter, at the time and place so fixed for trial, plaintiffs appeared, but this appellant, not knowing the court had completed and entered the order, did not appear. Plaintiffs moved the court for a dismissal, the court granted the motion, and entered its order dismissing appellant‘s petition in intervention. Appellant promptly moved to vacate the order of dismissal, but by order the court denied the motion. It is from this order the appeal is taken.
Plaintiffs have filed their motion to dismiss the appeal because (1) appellant failed to join other parties whom plaintiffs claim are necessary, proper and indis-
In 3 Am. Jur. 305, § 726, it is said in part: “The grounds for dismissal consists of facts which go to show that for some reason the merits of the appeal should not be heard.” The text then groups into four general classes these grounds for dismissal of an appeal— (1) want of jurisdiction; (2) non-appealability of the judgment or order; (3) ineffectiveness of any judgment that might be rendered by the appеllate court; and (4) defects in procedure. Only plaintiffs’ second and third grounds may, by any reasoning, be considered as falling within either of the above groupings, (see also Bank of Commerce v. Williams, 52 Wyo. 1, 14, 69 Pac. (2d) 525, 529).
While neither want of alleged necessary parties or insufficiency of petition (also see 4 C.J.S. 1959, § 1356) nor want of merit in the appeal (and see 4 C.J.S. 1944, § 1353) are proper grounds for dismissing an appeal, we might point out that the alleged want of parties was not raised by demurrer nor answer in the trial court and would not therefore, in any event, be available to the plaintiff-respondent as grounds for dismissal. (See Kirch v. Nicholson, 42 Wyo. 489, 494, 297 P. 398, 400). The complaint that the record does not contain a transcript of the evidence is wholly without merit, as there was neither testimony, evidence, nor a trial from which a transcript could be made. The finality of the order dismissing the petition in intervention has
The plaintiffs’ motion to dismiss the appeal will be denied.
The remaining question is, did the court below wrongly exercise its discretion in refusing to vacate its order dismissing intervener‘s petition? In April 1925, this court decided that the mere fact that a party or his counsel was not notified of the time set for trial, is not of itself sufficient reason to vacate a judgment ren-
“The irregularity claimed in the case at bar is, in its ultimate analysis, that the court did not notify Cook or his counsel of taking up and disposing of the casе, thus depriving Cook of the opportunity of answering over when the demurrer was overruled. But the courts seem to be unanimous in holding that no such notice was necessary to be given to the parties interested. It is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar. He is presumed to know, and is held to know, what is necessary to protect his interest.”
Appellant insists the case is now without precedential value, because since that decision was rendered,
“The clerks of the district courts within the state of Wyoming, are hereby required to send by registered mail to all parties, or their attorneys of record, in all contested cases in said courts, a copy of all orders or judgments, immediately upon the signing thereof by the judge before whom said matter is pending, * * *”
So it is сlaimed that the failure of the clerk to send a copy of the order setting the cause for trial in accordance with the statutory requirement, should save appellant from the hardship of being denied opportunity to have its claim disposed of upon the merits and that the rigor of the duty imposed by the Boulter case, supra, should accordingly be somewhat relaxed.
As far as we have learned, the first action taken by our legislature toward requiring notice of the signing or entry of orders, judgments or decrees, or that copies thereof be served or sеnt to parties to a judicial proceeding in this state, or to their attorneys of record, was the enactment of Chapter 122, Session Laws of
We must, therefore, concede that
Are we now to say that appellant was negligent of its duty “to take account of the time and place of holding court, the position of the case on the calendar and the state of the calendar“? Is appellant to be “held to know” that which its counsel had been diligent to ascertain in order to “protect his interest” but which he did not learn due to no fault of his own? Although counsel‘s affidavit in support of appellant‘s motion to vacate the
In 49 C.J.S. § 334 (e), 620, a somewhat pertinent statement is made, a portion of which we quote:
” * * * a judgment by default will be oрened if it is due to the inaccuracy of information given by, or reliance on statements of, such officials, such as a judge or the clerk of the court.”
“The authorities recognize that litigants are entitled to rely on statements by officials charged with the custody and control of papers and records relating to judicial proceedings in which they are interested, and about which information is sought, and that a judgment by default will be opened if it is due to the inaccuracy of information given by such officials. Logan v. Southall, 137 Iowa 372, 115 N.W. 19; Anaconda Mining Co. v. Saile, 16 Mont. 8, 39 P. 909, 50 Am. St. Rep. 472; 1 Freeman on Judgments, Sec. 245; 34 C.J. 299.”
In the case at bar, information as to the hour and date of setting for trial was sought by submitting to the court the requested form of оrder and though here there is no question regarding “inaccuracy of information“, the failure of the clerk to supply appellant with a copy of the order after it was completed by the judge, under the circumstances in this case, left appellant in exactly the same position as if he had been misinformed. In other words, appellant might reasonably have expected that when the judge acted he would be informed. Counsel had followed the court‘s direction. He had actеd and relied upon statements made to him by the court, looking toward the setting of the cause for trial. That he waited slightly more than thirty days after sending the form of order, expecting to be advised of the court‘s action in the matter, without taking further action or making further inquiry, was not unreasonable nor does it stamp him with being negligent.
The Delaware court (Yerkes v. Dangle, 42 Del. 362, 33 A. 2d 406, 408, 409), continued:
“The defendant contends, however, that there was a lack of reasonable diligence on the part of the defendant, because he relied upon the ‘misinformation hе claims to have received from the Prothonotary‘s office‘, instead of the letter of September 2, 1942 (from opposing counsel). The letter was amply sufficient to put a careful and prudent man upon inquiry, but when the other circumstances of the case are considered, I do not think that it can properly be said that the default occurred by reason of absence of, or such a lack of, care by the defendant as to amount to gross carelessness. The application for relief was made promptly, and the facts as averred by the defendant, if true, constitute a just and legal defense to the plaintiff‘s claim. The ultimate aim of litigation is the speedy determination of causes according to their real merits. In this case I think that substantial justice between the parties can best be accomplished, and without delay to the plaintiff, by granting the defendant‘s application.” (parenthesis supplied).
It has also been said that where there has been а default judgment resulting from a misunderstanding between counsel and the court, it may be set aside (49 C.J.S. § 334 (g), 638), and appellate courts have reversed lower courts under these circumstances when they have failed to set the default judgment aside. Thus in Central Metropolitan Bank v. American State Bank of Burlington, 49 N. Dak. 165, 190 N.W. 813, 814, 815, there was an appeal from an order of the lower court refusing to vacate a default judgment for the plaintiffs. The reversing opinion sets forth the material facts, a brief summary of which is, that the judge and complaining counsel had conversations in which the court indicated the case would not be set for trial over the objection of either party, and that the appellant had objected. Notwithstanding this, at the request of opposing counsel, a default judgment was entered against defendant, who then filed a motion to vacate, which was denied. The appellate court said in part:
“It appears plainly from the record, now before the
court, that defendants did not intend to neglect to defend both causes of actiоn when they were properly * * * brought on for trial. It would seem from the record that there was a misunderstanding between the court and the attorneys of the parties to the action just when in fact the cases would be set for trial and tried. There is no real showing that defendants have not been diligent in their defense. Their answers were interposed, and there is no definite showing that they were endeavoring to procrastinate. In these circumstances, we believe the due administration of justice requirеs that the defendants have an opportunity in court to establish their defenses. We believe, further, that the court abused its discretion in denying defendants’ motion to vacate the judgments.”
Here also, it is plain that the intervener “did not intend to neglect” to appear for the trial of the cause. On the contrary, it was the appellant-intervener, not the plaintiff, who sought a setting for trial and was alert and prompt to follow the judge‘s direction to secure such a setting.
The plaintiff below did not deny allegations in the defendant‘s affidavit nor, as before stated, did counsel challenge the accuracy of the representations made by appellant‘s counsel before this court. In consequence, these statements and representations for the purpose of this opinion must be accepted as true. Yerkes v. Dangle, 42 Del. 362, 33 A. 2d 406, 407. We can only reconcile the court‘s refusal to vacate its default judgment in this case by assuming as we do that the learned judge believed the decision of this cоurt in the Boulter case, supra, required that action, and failed to recognize, as we have, that the instant case is distinguished from the Boulter case, in that here the appellant is relying not alone on failure to receive notice of the time and date of trial, but that appellant had reasonable cause, even independent of
“There were no facts set forth in the affidavits, or in any of them, showing any mistake or excusable inadvertence.”
and again a quote was included from Baker v. Hunt & Co., 66 Okla. 42, 166 Pac. 891, where it was said:
“Neither the petition nor the evidence introduced discloses any effort on the part of the plaintiffs in error to ascertain the date on which the cause had been set for trial.”
Neither of these statements may be made in the case before us.
We feel also that there are sоme points worth noting in this appeal, which were discussed in Lake v. Lake, 63 Wyo. 375, 182 Pac. 2d 824. There the lower court was reversed because of its refusal to vacate its default judgment against a defendant who had failed to plead within the time limited by statute. The opinion observed that courts favor a trial upon the merits; that courts in the exercise of sound discretion have inherent power to set aside their default judgments; that the discretion to be exercised is an impartial one, guided and controlled by fixed legal prinсiples in conformity with the spirit of the law and to subserve and not defeat justice. In quoting with approval from the Citizens’ National Bank v. Brandon, 19 N.D. 489, 126 N.W. 102, 27 L.R.A. N.S. 858, this court indicated its agreement, that even though the lower court had not exercised its discretion intemperately, arbitrarily, or in a manner palpably erroneous, the reviewing court should extend its inquiry to determine from the facts shown, whether in the interest of justice and right it should
In Eager v. Dеrowitsch, 68 Wyo. 251, 267, 232 Pac. (2d) 713, 718, 719, where the lower court refused to vacate its default judgment rendered on failure of the defendant to answer or otherwise plead within the time required by law, this court reversed upon a showing that due to a misunderstanding between the defendant and his counsel the default occurred. This opinion so exhaustively reviews the authorities supporting the views there expressed, many of which are deemed applicable here, that it would serve no good purpose to attempt further amplification here.
We repeat that we adhere to the basic rule recognized in the Boulter case, supra, that “it is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar“, but, as in the circumstances of this case, we also hold that in the interest of justice, there must be an exception to that general rule where it appears thаt due to an understandable mistake, excusable inadvertence or honest misunderstanding reasonably relied upon, the party charged with the duty, is misled.
The order appealed from must be reversed and direction is given to open the default, to set aside the judgment entered and that the issues upon the appellant‘s petition in intervention, the plaintiff‘s answer and the intervener‘s reply, be tried upon their merits.
Reversed and remanded for trial.
RINER, C. J., and BLUME, J., concur.
ON PETITION FOR REHEARING.
Submitted on behalf of plaintiffs and respondents by John J. Spriggs, Sr., and John J. Spriggs, Jr., of Lan-
HARNSBERGER, Justice.
The respondent has filed a petition for rehearing. We have carefully read and considered his points and the arguments advanced in support of the petition, but are unable to discover a single matter contained therein which was not heretofore advanced and argued by the petitioner and considered and disposed of by our opinion. This being the case, the petition for rehearing is denied.
Denied.
Due to the temporary absence of the Chief Justice, the above was not submitted to him. However, he had previously indicated his agreement with this disposition of the petition for rehearing.
BLUME, J., concurs.