13 Nev. 194 | Nev. | 1878
By the Court,
These cases, presenting precisely the same questions, were argued, and will be decided together.
The records sIioav that on the twenty-fifth of J une, 1877, the plaintiff, the State of Nevada, brought four suits, two against the defendant, the Consolidated Virginia mining company, and Iavo against the defendant, the California mining company, for the recovery of certain alleged delinquencies and penalties claimed to be due on account of delinquent taxes for tAvo quarter years. The complaint and summons in each suit Avere regularly served upon J. G.
The defendants appeared and filed a demurrer in one of the suits against the Consolidated Virginia mining company, and in one of the suits against the California mining company, and made default in each of the other suits.' Judgment having been entered by default in these suits the defendants appeared, and moved the court to set the judgments aside, and to open the defaults. In support of these motions, the defendants presented the affidavits of J. G. Fair, the superintendent of defendants; C. J. Hillyer, the attorney for defendants, and A. H. Ricketts, a clerk in the office of said attorney. The court granted the motion, and the plaintiff appeals.
The affidavit of the superintendent shows that when he was served with the copies of complaints and summons he took them, according to his usual custom, to C. J. Hillyer, an attorney regularly employed on a salary to attend to the legal business of said defendants, and left them with said attorney after making the request that they should receive proper attention. He “remembers well there was more than one complaint, but whether or not there were more than two he does not remember; but he is confident he delivered to the attorney all the papers served upon him by the sheriff.” After being assured by the attorney that the papers would be attended to he left the attorney’s office, and shortly thereafter wrote to the president and board of trustees of the respective companies in San Francisco, California, that suits had been commenced for the recovery of penalties for the non-payment of taxes, and that the papers had been placed in the hands of their attorney, with instructions to defend the same. He further says “that he is informed by his attorney, who is familiar with all the facts, and fully believes that each of said companies has a good and meritorious defense to the certain cause of action in the respective suits in which a default has been entered.”
The affidavit of C. J. Hillyer affirms the statements made by the superintendent in respect to his connection with the
“Affiant further says that had he known of the commencement of the said suits he would have filed therein at the proper time demurrers in the same form as those actually
“Affiant further says that he is familiar with all the facts upon which a recovery is sought in said action, and fully believes, and has so stated to the defendants, that the defendants have a good and meritorious defense to each of said actions, and are not in fact liable for any portion of the amount therein claimed, and also that the subject-matter of said action is res adjudicata, and that this, in the opinion of affiant, sufficiently appears on the face of the complaints, but if not, that it can be made fully to appear by answer.”
“Affiant further says that there is not, and has not been, any desire on the part of defendants to delay a hearing in said action upon the merits.”
A. H. Ricketts deposes and says, after confirming the statements of Mr. Hillyer as to the instructions about the preparation and filing of the demurrers in the two suits, and the performance of that duty upon his part pursuant to said instructions, “that neither from Mr. Hillyer, nor from any other source did he learn, or have any reason to suspect that any more than two actions were then pending for taxes against said companies in which pleadings had not been filed; that he first learned that four actions, instead of two, had been commenced in the month of June, after judgment by default had been entered in two of said causes on the seventh instant; that on learning this and being satisfied that there had been some mistake, and thinking it possible that Mr. Hillyer might either have overlooked the papers or have neglected to give instructions in relation to them he, in the absence of Mr. Hillyer, who was in San Francisco, examined thoroughly the legal papers in his office and found there two copies of complaints filed June twenty-fifth, with summons attached, and no papers whatever in relation to any other suits for tax penalties, and affiant is confident no such papers were in the office. The copies of complaints found were both for the recovery of penalties for non-payment of tax for the quarter ending December 31, 1876.”
It is very true, as was argued by appellant’s counsel, that there is no satisfactory proof as to what became of the two missing complaints and summons. The return and affidavit of the sheriff is positive that he did personally serve the superintendent with four copies, one in each suit, on the twenty-ninth day of June, 1877. It was the duty of the superintendent to deliver these copies to the attorney for the defendants, and he is confident that he did so deliver all the papers that were served upon him. If so, there was no' fault or negligence on his part. The attorney seems to have acted in good faith. It may have been an oversight on his part in not immediately examining all the papers brought' by Mr. Fair, instead of simply examining “ one of the complaints for the purpose of seeing the general nature of the suit,” but certainly it was not such an act of negligence in omitting to do so, at that time, .as would authorize the court to refuse to open up the default upon this ground merely. The defendants, notwithstanding the fact of a perfect service having been made by publication, in addition to the personal service upon the superintendent, had the right to believe, from the letter of their superintendent, that their attorney would file the necessary papers in all the suits. But without noticing all the points urged by the district attorney in his brief, we are of opinion that the fact that the defendants appeared in two of the cases shows conclusively that their attorney was ignorant of the existence of the other two suits, and that it was owing to an honest mistake which occurred in some unexplained manner, without any positive fault or negligence upon his part, or upon the part of the defendants or any of their agents, that demurrers were not filed in all the suits. There is no reason why demurrers should have been interposed in the two cases and not in the others. The suits were identical in character, and if any defense could be made in one it could in all. The facts here, although of an entirely different nature, are
It is difficult to establish a rule upon this subject that would be applicable to all cases, as every case must necessarily be determined upon its own peculiar facts. We think the facts in these eases, as presented in the affidavits referred to, bring the defendants within the rule of the statute which authorizes the court, “upon such terms as may be just, and upon payment of costs,” to “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 ” (1 Comp. Laws, 1131), and are of opinion that the action of the court below in opening the defaults should be sustained.
The affidavits as to the merits are, in our judgment, sufficient. (Howe v. Coldren, supra; Woodward v. Backus, 20 Cal. 137; Francis v. Cox, 33 Cal. 323.)
The affidavits were prepared to be used, and were used, in the two cases wherein the defaults had been entered. The fact that they were not properly entitled in these actions is immaterial, as they do intelligibly refer to the respective actions in which the defaults were entered. (1 Comp. Laws, 1568.) But if the objection of appellant possessed any merit, it should have been made in the court below, and not urged for the first time in the appellate court. (Longabaugh v. V. and T. R. Co., 9 Nev. 292.)
The form of the order is also objected to by appellant. The court made the orders setting aside the defaults and opening the judgments, and added: “ It is further ordered by the court that said defendants do pay the costs of this proceeding,” instead of granting the relief, upon the payment of costs, in the language of the statute. This objection, like the last, might readily have been cured if taken in the court below at the time the order was made, and for
The orders appealed from are affirmed, and tbe district court will fix a reasonable time within which the respective defendants will be allowed, upon the payment of the costs in these proceedings in the court below, to plead to the respective complaints. Each party to pay its own costs on appeal.