State ex rel. Kohl v. District Court

128 P. 582 | Mont. | 1912

MR. JUSTICE SMITH

delivered the opinion of the court.

Application for a writ of mandate to compel the district court of Silver Bow county and one of its judges to vacate an order heretofore entered refusing to set aside a default and a judgment against the relator, and to enter an order setting aside the default, vacating the judgment and dismissing the action.

The relator’s affidavit discloses that in 1894 James B. Haggin began an action against him and others to quiet title to certain real estate in Silver Bow county. Although relator was duly served with summons on February 20, 1894, he never appeared in the action. On July 5, 1912, the clerk of the district court, on motion of counsel for plaintiff, entered his default, and on the same day the court, also on motion and after a hearing, entered judgment against him in accordance with the prayer of the complaint. On July 22, 1912, relator moved the district court to vacate said judgment and default and dismiss the action, which motion was denied. The issue in this court is made by demurrer to the affidavit and a motion to quash the alternative writ heretofore issued.

On the authority of State ex rel. Stiefel v. District Court, 37 Mont. 298, 96 Pac. 337, it is contended by relator, (1) that it was the duty of the clerk to enter the default of the defendant in accordance with the provisions of subdivision 2 of section 6719, Revised Codes, and (2) that thereafter it was the duty of the court to dismiss the action after the expiration of more than six months, by virtue of subdivision 6 of section 6714, Revised Codes.

This case is distinguishable from the Stiefel Case in this: that Stiefel’s default was regularly entered and the court, after the expiration of more than six months from such entry, refused to dismiss the cause as to him; while in the case of Haggin v. Kohl et al., with which we are concerned, no default was entered until immediately prior to the entry of judgment.

We think the learned counsel for the relator has failed to grasp Ihe true significance of subdivision 6 of section 6714, Revised Codes, supra. It reads as follows: “An action may be dismissed or a judgment of nonsuit entered in the following cases: * * * 6. By the court, when after verdict or final submission, the party entitled to judgment neglects to demand and have the same [1] entered for more than six months.” It is only after verdict or final submission of a case that it may be dismissed for failure to have judgment entered for more than six months. As was said by Mr. Justice Holloway, for this court, in the Stiefel Case, supra: “The words ‘final submission’ mean a submission which is equivalent to the return of a verdict, or, in other words, they refer to that state of the case when a judgment may rightly be demanded, as of course.” And again: “(Quoting.) A default has practically the same effect as a verdict. Until set aside, it is a final determination of the matters set up in the declaration.” Again: “Upon the entry of Stiefel’s default, there was a final submission of the case as against him. * * * Under subdivision 6 it was the duty of the plaintiff, within six months after Stiefel’s default was entered, to demand and have entered the judgment to which plaintiff was entitled. * * * At the expiration of six months from the time his default was entered, Stiefel had a right to have the action dismissed as against him.” These quotations serve to show the scope and full extent of thé holding in the Stiefel Case. It is only after verdict or such final submission as is equivalent thereto that a cause may be dismissed for failure for more than six months to enter judgment. And there is a reason for this choice of words. Experience teaches every practicing attorney that there may be many reasons for failure to enter default. The direction to the clerk is by no means mandatory. Let us suppose for the moment that counsel had orally agreed, for a consideration in the way of payments by installments upon an undisputed claim, that default would not be entered for a certain fixed period of time. That is often done. Or suppose counsel were undecided as to whether the complaint should not be amended and a new service made, before asking for entry of a default. Would it be the absolute duty of the clerk to enter default under such circumstances? We think not. In Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218, the court said: “The provision that the clerk must enter the judgment ‘immediately’ after entering default is merely directory.” [2] Applying the same principle to this ease, we hold that the direction to the clerk to enter the default of the defendant, contained in subdivision 2 of section 6719, Revised Codes, is merely directory. Until a formal default has been entered, the cause has not reached that stage of “final submission” to which subdivision 6 of section 6714 applies. A formal entry of default is notice to the court that the cause is ready for judgment as against the defaulting defendant. Prior to its entry a defendant who has been regularly served is in an altogether different situation from what he is- after his default has been formally noted. As there was no formal entry of default in the Haggin Case, there was no such “final submission” as would compel the district court to dismiss it on motion of the relator.

The demurrer to the affidavit is sustained, the alternative writ is quashed, and the proceedings are dismissed.

Dismissed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.