124 P. 278 | Idaho | 1912
This is an appeal from an order of the district court in and for Idaho county, made on the 29th of February, 1912, opening a default and setting aside a judgment- and permitting the defendant to file an answer. It appears from the record that a complaint was filed in the district court by the appellant against the respondent on October 28, 1911; that summons was issued on that date and returned on November 2, 1911; that personal service was made upon the respondent on November 2, 1911, in the county of Idaho; on November 24, 1911, the clerk of the district court entered a default against the defendant. On November 27, 1911, the case was tried before the court and a judgment entered in favor of the plaintiff against the defendant for the sum of $2,770.95 and costs. On December 28, 1911, the respondent filed in the district court a notice of a motion to set aside the default judgment entered in said cause, upon the grounds of mistake, inadvertence, surprise and excusable neglect, and accompanied said notice of motion with affidavits and an answer and eross-complaint. The appellant filed counter-affidavits.
This motion was heard upon the affidavits, the complaint, answer and cross-complaint. Two questions are presented: First, was there an affidavit of merits filed with the application to set aside the default and judgment? Appellant argues that the answer and cross-complaint do not constitute an affidavit of merits. This court in considering and determining a motion to open a default has uniformly held that an answer stating a defense was sufficient as an affidavit of merits. (Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031.) If the merits, that is, if the defense to the cause of action, is set forth in an answer instead of being stated in an affidavit
The complaint is based upon the following written contract :
“Kooskia, July 21, 1911.
“For and in consideration of the sum of One Dollar, the receipt of which is hereby acknowledged, I have this date sold to the Yollmer Clearwater Co., Ltd., and the Yollmer Clearwater Co., Ltd., hereby agrees to buy 300 sacks of #1 Timothy seed at $7.00 per hundred, to be delivered at Vollmer Clearwater Co., Ltd., warehouse at Kooskia Tram on or before Oct. 1st, 1911. Settlement to be on basis usual deductions of one pound to the sack tare, grain to be in new bags, or if barley or oats buyer will accept it in No. 1 second bags, free from holes. Grades and weights to be governed by usual grading as established by State of Washington, and to be accepted by seller at local — terminal warehouses. All indebtedness of seller to purchaser to be deducted from purchase price and time stipulated for delivery is to be of essence of this contract.
“YOLLMER, CLEARWATER CO., LTD.
“By E. A. DECKER.
“Approved W. A. GRÜNEWALD.”
The complaint alleges a breach of this contract and damages are demanded.
In the answer the defendant denies that upon the date alleged in the complaint the plaintiff and defendant entered
The question is raised that the denials in this answer are insufficient, and as such do not state a defense to the plaintiff’s cause of action as alleged in the complaint. This presents a very serious question, but it is unnecessary to enter into a discussion of the same, for the reason that in the opinion of the court the showing made as to mistake, inadvertence, surprise and excusable neglect was insufficient to authorize the trial court in setting aside the judgment, and if such showing was insufficient, it was immaterial whether the answer presented facts showing merits or not.
Second, did the respondent make such a showing of mistake, inadvertence, surprise or excusable neglect as to justify the trial court to open the default? The facts in this case and the rule governing the same fall clearly under the rule announced by this court in the case of Harr v. Kight, 18 Ida. 53, 108 Pac. 539. The facts are similar in many instances in both cases. In the present case there was personal service of summons at Grangeville, in the county where the action had been brought, on the 2d day of November, 1911. The defendant resided in said county and was at the county seat where the action was commenced at the time such service was made. He was advised by the summons of the fact that the
As said by this court in the above case of Harr v. Kight, “If this court should reverse this case and hold that the trial court abused its discretion in refusing to open the default, then there would scarcely be a default judgment but that a sufficient showing could be made to set the same aside. Litigation would be delayed and prolonged and the statute fixing the time within which an answer or demurrer must be filed would practically be nullified.”
If this court should recognize the showing made in this case as a legal ground for opening a default, then the commencement of an action and the service of process would have very little force or effect in affording a basis for a, judgment, and any mere pretense on the part of the defendant that he depended upon his attorney to appear and the excuse of the
We are of the opinion that the trial court erred in opening the default and setting aside the judgment. The order of the trial court made on the 29th day of February, 1912, opening the default and setting aside the judgment entered in said case on the 27th day of November, 1911, is reversed. Costs awarded to the appellant.
Petition for rehearing denied.