17 Utah 198 | Utah | 1898
(after a statement of the case as above, delivered the opinion of the court):
Counsel for the appellant, among other things, insists that the court, under the facts of this case, did not exercise a sound discretion in denying the motion to set aside the judgment by default, and in refusing to permit the defendant to file his answer. Counsel for the respondent contend that the motion states no ground for setting aside the default. The motion itself does not seem to appear in the record filed in this court, and therefore we are unable to scrutinize its terms. The notice does appear, and it shows that the motion was made on certain affidavits and pleadings, and by affidavit it is shown that the entry of judgment by default was a surprise to the defendant, and that the application to set it aside was based on mistake and excusable neglect, which are statutory grounds for relief. It also appears that at the hearing of the motion all parties were properly represented. Evidence was introduced, the parties were heard, the matter submitted, taken under advisement, and finally decided, without, so far as shown by the record, any objection on the ground that the motion was defective, which ground, it seems, is urged for the first time in this court. Under the facts and circumstances disclosed by the record, this court must hold that the motion was sufficient.
Was, then, the overruling of the motion such an abuse of discretion, on the part of the court, as to render its action in the premises erroneous and prejudicial to the rights of the defendant? It is clearly shown that during all the proceedings in the suit by the bank the defendant was absent from the state on business -affairs — was in the state of California, and much of the time in a remote part
In Bailey v. Taafe, 29 Cal. 423, it was said: “The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice.” 1 Freem. Judgm. §§ 106, 114; 3 Estee, Pl. & Prac. § 4802; Fulweiler v. Mining Co., 83 Cal. 126; Wolff v. Railway, 89 Cal. 332; Thomas v. Morris, 8 Utah 284; Schnitzler v. Bank, (Kan. App.) 42 Pac. 496; Buell v. Emerich, 85 Cal. 116; Johnson v. Eldred, 13 Wis. 639; Machine Co. v. Marchant, 11 Utah 68; Roland v. Kreyenhagen, 18 Cal. 455; Woodward v. Backus, 20 Cal. 138.
No general rule can be laid down respecting the discretion to be exercised in setting aside or refusing to set aside a judgment by default. So it would be impossible to state what degree of negligence would justify the court in refusing relief in all such cases. Each case must necessarily depend upon its own peculiar facts and circumstances, but the discretion should always be so exercised as to promote the ends of justice. In the case at bar the facts and circumstances show that it was an unavoidable misfortune to the defendant that he did not know that no attorney was representing him in the proceedings which led to the entry of judgment against him until after the