85 P. 1084 | Idaho | 1906
Lead Opinion
Plaintiff commenced this action in the district court of Bingham county against C. S. Smith and Nellie J. Smith to foreclose a mortage it had against these defendants. The complaint alleges that on the twenty-eighth day of February, 1891, defendants Smith executed their promissory note for the sum of $1,000, payable on or before five years after date with interest at the rate of nine per cent per annum payable monthly in advance, to the Western Building and Loan Association, a corporation, under the laws of Idaho. That on the same day defendants executed their mortgage to secure the payment of the note above referred to; that said mortgage was duly acknowledged, delivered to said corporation and filed for record. That on the tenth day of October, 1894, said Western Building and Loan Association assigned, transferred and delivered all its right, title and interest in and to the note and mortgage to the Western Loan and Sav
“1. That the complaint of the plaintiff herein does not state facts sufficient to constitute a cause of action against
The fourth allegation of the answer is that the defendant is informed and believes, and upon such information and belief alleges, that the plaintiff’s action herein is barred by the provisions of section 4052 of the Revised Statutes of Idaho of 1887. And further answering by way of cross-complaint against the plaintiff and eách and all of the defendants hereto other than this cross-complaint, the said John Givens alleges as follows, to wit: 1. Sets up the execution and delivery of the note by defendants Smith to Bunting and a copy thereof; 2. The execution and delivery of the mortgage to secure the note; 3. The assignment of the note and mortgage to Givens; 4. The payment of certain interest on the note by C. S. Smith and the amount he claims to be due on the note; 5. That he is the lawful owner and holder and entitled to payment, etc.; 6. That plaintiff has, or claims to have, interest in- or claim upon said premises, or some part thereof, as mortgagee or otherwise, and refers to some contract or claim held by Charles A. Warner, deceased, by virtue of a trust deed executed and delivered by defendants Smith to said Warner for the pay
Counsel for plaintiffs demur to this answer and cross-complaint, to wit: ‘ ‘ Comes now the plaintiff in the above-entitled action and demurs to the answer filed by the defendants C. S. Smith, Nellie J. Smith and John W. Givens, and for grounds of demurrer allege as follows: That neither of said answers state facts sufficient to constitute a defense or action against this plaintiff.” If the court ever ruled upon this demurrer the record is silent as to the order.
The next step taken as shown by the record was what is termed “Reply to answer and pretended cross-pomplaint, ” which was filed July 3, 1905; the first paragraph is: “That as respects the allegations contained in paragraphs 7 and 9 of the answer of said defendant Givens, wherein said defendant alleges ownership of a certain note and mortgage executed by his codefendants, C. S. Smith and Nellie J. Smith, to C. Bunting & Co., and alleges that said note and mortgage is superior to the note and mortgage of the plaintiff; the plaintiff answering upon information and belief that the note and mortgage referred to and described in said paragraph is barred by the provisions of section 4052 of the Revised Statutes of Idaho for 1887, and that the defendant’s alleged cause of action thereon, as against this plaintiff, is barred by the provisions of section 4052 of the Revised Statutes of Idaho for 1887.” The plaintiff denies that the plaintiff’s action is barred by the provisions of section 4052 of the Revised Statutes of Idaho for 1887. And further replying to the said answer and pretended cross-complaint of the said defendant, the plaintiff admits and alleges as follows:
“1. Plaintiff has no knowledge, information or belief sufficient to enable it to reply to the allegations of paragraph
Respecting the sixth paragraph in the cross-complaint, plaintiff says: “Respecting the allegations of the sixth paragraph of the said pretended cross-complaint, the plaintiff admits that it claims to have some interest in, or claim upon, said premises described in the said pretended cross-complaint as mortgagee; but denies that said interest and claim is inferior to, or subject to, the lien of the said cross-complainant’s mortgage, but alleges that it is superior to the cross-complainant’s mortgage, and further alleges that the said claim and interest of the plaintiff is described and set forth in the plaintiff’s complaint herein, which is hereby referred to and made a part of this reply. That as regards the other matters and things alleged in said paragraph, the plaintiff has no knowledge, information or belief concerning them, and basing its denial upon that ground, denies each and all of the other allegations in said paragraph contained.”
The eighth is: “Plaintiff alleges upon information and belief that the said pretended cause of action alleged by the cross-complainant against his said codefendants, C. S. Smith and Nellie J. Smith, and particularly as against the said plaintiff, is barred by the provisions of section 4052 of the Revised Statutes of Idaho for 1887.”
On the eighth day of May, 1905, the clerk made the following entry: “In this action, the plaintiff having been served with copy of the cross-complaint of defendant John W. Givens, and having failed to answer or demur to said cross-complaint, and the legal time for answer having expired, the default of the plaintiff in the premises is hereby entered according to law.”
On the ninth day of June, 1905, a judgment was rendered in favor of cross-complainant, John W. Givens, for amount
*101 “II. That the said Givens was not legally entitled to enter the default of the plaintiff on the said cross-complaint for the following reasons: a. That the said pretended cross-complaint is contained in an instrument entitled, ‘Answer and Cross-complaint’ and is therein set up by way of and as part of the answer as is shown by its first paragraph, and the said plaintiff has duly appeared and plead to said answer by filing a demurrer thereto; b. That the plaintiff appeared in said action by filing the original complaint and by filing a demurrer to the answer of said Givens, notwithstanding which the default of the plaintiff was entered by the clerk without giving the plaintiff any notice as required by law.
“III. That if said pretended cross-complaint is a valid and subsisting cross-complaint against the plaintiff, the plaintiff’s failure to demur or answer to .the same by express reference, is due to mistake, accident, surprise, inadvertence and excusable neglect, as follows, to wit: That as shown by the complaint the plaintiff holds the first and superior lien upon the premises described therein, and that the mortgage of J. W. Givens is inferior to that of plaintiff. That it was to determine this point only that said J. W. Givens was made a party to this action. That the answer and pretended cross-complaint of said Givens alleges no facts which controvert this contention of plaintiff and that it never was, and is not now, the intention of plaintiff to abandon this contention. That when the answer and cross-complaint of said Givens was served upon plaintiff’s attorney, H. K. Linger, the said attorney, through mistake and accident, overlooked the fact that that cross-complaint was directed against the plaintiff. He supposed that the answer was directed against the plaintiff, and that the cross-complaint was directed against the defendants only, C. S. Smith and Nellie J. Smith. That on this account the plaintiff, through its attorney, interposed a pleading, to wit, a demurrer to the answer only, but intended by the said pleading to demur to all matters alleged by the said J. W. Givens against the plaintiff in the said answer and cross-complaint.
*102 “IV. That the said plaintiff has a substantial defense upon the merits to any claim made by the said defendant, J. W. Givens, in the said cross-complaint.”
This motion is supported by the affidavit of P. W. Madson, president and manager of plaintiff corporation after stating that the plaintiff is the owner and holder of the note described in the complaint; that it is the first lien on the premises described in plaintiff’s mortgage, and superior to the lien of defendant Given’s mortgage set np in his cross-complaint, and as a reason why the default of plaintiff should be vacated and the judgment entered in favor of Givens vacated, says: “That the attorneys in the above-entitled action were C. S. Price of Salt Lake and H. K. Linger of Idaho Falls, Idaho. That the answer and cross-complaint of the defendant J. W. Givens was served upon H. K. Linger, who mailed the same to C. S. Price of Salt Lake City. That said C. S. Price directed H. K. Linger to file a demurrer to the said answer. That the said H. K. Linger, upon receipt of said letter, drafted a demurrer to the said answer and filed the same. That at said time he was under the impression that he was pleading to the whole of the pleadings filed by J. W. Givens. That he did not have the answer and cross-complaint before him at the time, and his recollection was that simply an answer was filed as to the said plaintiff, and for that reason his demurrer ran to the answer simply. That it was the proposed intention of said Price and said Linger and the said plaintiff to demur to both the answer and to said cross-complaint, and that it was by reason of the foregoing accident and mistake that the cross-complaint was not expressly mentioned in said demurrer.”
In the order overruling this motion it was shown that H. K. Linger, G. H. Hansbrough and James Ingebretsen appeared for the plaintiff in the argument of the motion. On the first day of July, 1905, the motion was overruled. This is practically a complete record of this ease, and is given in order that the facts just as they were before the trial court may be understood.
The application to vacate and set aside the default entered by the clerk and also the judgment entered thereafter was
Again, as to the discretion of the court, or its abuse thereof, as shown by the record, there is but one affidavit filed in support of the motion to set aside the default and judgment. Mr. P. W. Madson, the president and manager of plaintiff corporation, attempts to enlighten the court upon' the course pursued by his counsel, Mr. Price of Salt Lake and Mr. Linger of Idaho Falls, when they received the answer and cross-complaint filed by cross-complainant Givens. It is urged that from this affidavit, together with the facts shown by the record, the court should have granted the motion of appellant and relieved it of the default entered by the clerk and the judgment on such default. We are of the opinion there is enough stated in the motion, if supported by sufficient affidavits or some good reason shown why they could not be procured, to have warranted this court in saying that a refusal to grant relief would have been an abuse of legal discretion. There is no showing why the affidavit of Attorney Price of Salt Lake and Mr. Linger of Idaho Falls were not filed in support of this motion; they were the parties of all others who could have enlightened the court upon the reasons why the demurrer did not run against the cross-complaint as well as the answer, and if there was any reasonable excuse for such inadvertence, mistake or neglect, •they could have so stated in an affidavit. If such showing had been made it is possible, and even probable, that the learned judge of the lower court would have granted the relief demanded by the motion. It was shown by the judgment'or order overruling the motion that Mr. Linger was present and participated in the argument of the motion. We cannot understand why Mr. Linger did not supply the record with his affidavit stating the facts as stated in the affidavit of the president of plaintiff. He certainly knew the real facts so far as he is connected with them in the affidavit filed by Mr.. Madson better than anyone else, and hence ■was better prepared to convince the court by his affidavit that plaintiff was entitled to relief on the grounds of mis
This court in a very recent case entitled D. Holzeman & Co. et al. v. Wm. Henneberry, 11 Idaho, 428, 83 Pac. 497, discussed the discretion of the trial court in setting aside or refusing to set aside a default judgment. Mr. Justice Ailshie said:
“It is a well-established principle that the granting or refusing an order of this kind rests in the sound legal discretion of the court to which the application is made, and that unless it appears that such discretion has been abused, the order will not be disturbed on appeal”; citing Bailey v. Taaffe, 29 Cal. 422, note in 58 Am. Dec. 392; Holland Bank v. Lieuallen, 6 Idaho, 127, 53 Pac. 398.
As to the merits of the respective parties to this action, we express no opinion as plaintiff is entitled to a hearing on his complaint, and the answer filed by cross-complainant Givens. Neither do we express an opinion as to the bar of the statute of limitations which each of the contesting parties seeks to invoke against the other. We find no error in the record and the judgment is affirmed. Costs to respondent.
Rehearing
ON PETITION EOR REHEARING.
A petition for rehearing has been filed in this case, and one point of contention therein is that there was no cross-complaint filed in the case. We are unable to agree with their contention. The answer is entitled, “Answer and Cross-complaint.” While the answer and cross-complaint is contained in one instrument, we find the following in the tenth paragraph of the complaint; “And further
While it may not be a good practice to embody in the same instrument-an answer and a cross-complaint, we know of no provision of the statute prohibiting that method of pleading, and it is clear to us that a cross-complaint is pleaded in this action which was not answered.
The next contention of counsel in the petition for a rehearing is that the judgment could not be sustained for the reason that it was not properly entered, in that it was not a judgment rendered during the trial of the main cause, but a separate and distinct judgment rendered after the default of the plaintiff had been entered for not answering the cross-complaint. While it might have been better to have entered a judgment covering the entire case made by the complaint, answer and cross-complaint, we know of no reason why a defendant who files a cross-complaint and asks therein distinct and separate relief should not be entitled to a judgment in his favor on cross-complaint, provided the plaintiff fails to answer the cross-complaint.. The plaintiff no doubt has a right to have a judgment entered in the main action, and the trial court has the authority to enter such judgment as may be right in the premises.
For the reasons above stated, a rehearing is denied.