Valley State Bank, Ltd. v. Post Falls Land & Water Co. , 29 Idaho 587 ( 1916 )

SULLIVAN, C. J.

This action was brought to recover against the defendants on a promissory note executed by the corporation to the defendant Coffman, for the sum of $500 and interest, and indorsed by him. The defendant corporation failed to appear and answer. Coffman appeared and filed a demurrer. Thereafter the attorney for the plaintiff notified the attorney for defendant Coffman that the demurrer would be called for hearing on November 20, 1915. On that date, by agreement of counsel, the demurrer was submitted to the court without argument and was overruled by the court and defendant Coffman was given ten days in which to answer. On November 20th plaintiff’s attorney mailed to Cullen, Lee & Matthews, of Spokane, Washington, attorneys for defendant Coffman, a copy of said order overruling the demurrer. On December 3, 1915, Coffman having failed to answer within the time allowed by the court, or at all, his default was entered and judgment entered against him. Thereafter, on December 7, 1915, the attorneys for Coffman served upon plaintiff’s attorney a notice that said defendant would on December 18, 1915, move to vacate and set aside said judgment against the defendant and ask permission to file an answer. The ground on which said motion was based was “that said judgment was taken against the said defendant through mistake, inadvertence and excusable neglect of his attorneys.”

The motion was based upon the pleadings and files, the affidavit of W. F. Matthews, one of the attorneys for the defendant, the affidavit of Robert H. Elder and the answer of defendant Coffman. The affidavit of Matthews is in substance that he, as one of the attorneys for defendant Coffman, had charge of all the pleadings and files in said case; that the order overruling said defendant’s demurrer dated November 20,1915, stated that said defendant had ten days in which to answer plaintiff’s complaint; that upon the receipt of said order, affiant noted in his daily docket that the answer would be due in said case on December 7, 1915, whereas the entry should have been made that said answer was due on November 30, 1915; that during the week ending December 4, 1915, affiant was engaged in court in Spokane and did not notice until December 6th that the time for filing said answer, according to the court’s order overruling the demurrer, was on November 30, 1915. The affiant immediately telephoned plaintiff’s attorney and advised him that the answer was being forwarded. Affiant then learned for the first time that judgment by default had been entered'. Affiant further states that said Coffman has a good and valid defense to plaintiff’s complaint, and that the promissory note sued oh was indorsed without recourse by said Coffman to the plaintiff, and that after said indorsement and delivery said bank wrongfully and without authority from said Coffman canceled the words “without recourse,” which defense is set úp in defendant’s answer; that unless said judgment is vacated, defendant Coffman will suffer great injustice and that affiant believes that on a trial no judgment will be recovered from said Coffman. Affiant further states that said judgment was entered through his, mistake, inadvertence and excusable neglect.

It appears that Elder & Elder, lawyers located at Coeur d’Alene, Kootenai county, were employed as local attorneys, and it is nowhere stated in Matthews ’ affidavit that said local attorneys had anything whatever to do with said case. Matthews swears that he, as one of the attorneys of defendant Coffman, had charge of all the pleadings and files, and that the notice overruling the demurrer was served on him. He nowhere states that local counsel had anything to do with the matter at all.

In the affidavit of Robert H. Elder, he states that on or about the 12th of November, 1915, the said firm of attorneys and defendant Coffman arranged with his firm to represent said defendant as local attorneys in said action, and that no notice of the hearing of the demurrer was ever served on him or his firm.

It appears from the showing that Matthews had charge of this case and that Elder & Elder had nothing to do with it; that Matthews had notice of the overruling of Coffman’s demurrer and of the order giving him ten days in which to answer, but on account of being very busy in the courts of the state of Washington, and apparently relying upon the practice in the state of Washington of notifying opposing counsel before taking default, he failed to answer for Coffman within the time given by the court. He also relies upon having made a wrong entry in his docket of the date on which Coffman had to answer. He fails to show that Elder & Elder did or was expected to do anything in the ease.

The showing made was clearly insufficient to warrant the trial court in setting aside the default, and this case comes clearly within the rule laid down by this court in Domer v. Stone, 27 Ida. 279, 284, 149 Pac. 505; Kynaston v. Thorp, 29 Ida. 302, 158 Pac. 790, and Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031.

In the Domer v. Stone case it is held that the neglect of a lawyer to familiarize himself with the laws governing the practice of the forum where his case is pending cannot be held to be excusable, when a defendant having received the warning given him by the plain terms of a summons chooses to disregard it and to neglect the laws of the state governing the court from which it was issued, and when he elects to rely upon the purely imaginary security of the rules of practice or customs prevailing in another state, and that “if a default judgment is taken against him the courts are not invested with discretionary power to grant him relief from it.” If an attorney is careless and makes a wrong entry in his docket as to the time his client has to answer, that of itself is not sufficient to show mistake, inadvertence or excusable neglect. If default judgments could thus easily be set aside, the delays of the law would be greatly enhanced.

It clearly appears from the showing made to open the default that the local attorneys had nothing whatever to do with this case, and that attorney Matthews had full control and had full knowledge of the overruling of the demurrer and of the time that the defendant was given to answer.

There was not a sufficient showing of mistake, inadvertence or excusable neglect on the part of defendant’s attorneys in this case, and the trial court clearly abused its discretion in setting aside said judgment, since such discretion is confined to a sound legal discretion.

The order setting aside said judgment is reversed and the cause remanded to the trial court, with directions to overrule said motion. Costs are awarded to the appellant.