Haggin v. Lorentz , 13 Mont. 406 ( 1893 )

Harwood, J.

This court is unable to find in the affidavits filed in support of the motion to set aside default a showing of fiicts sufficient to warrant a reversal of the ruling of the trial court thereon. The action was pending more than a year before judgment was entered. Defendants’ demurrer haviug been overruled, their counsel interposed a motion to strike out certain portions of the complaint, which motion was overruled; whereupon defendants were granted ten days within which to file an answer. When that order was made, as apjiears from the affidavit of respondent’s counsel, one of the appellants’ attorneys was present within the bar of the court; and this is not directly disputed by the affidavits filed in support of the motion to set aside said default, although defendants’ counsel affirms in his affidavit “that, after filing said motion to strike out portions of the complaint, affiant had no further notice of the proceedings in said cause, and did not know of the action of the court in overruling said motion, nor any action of the court in said cause, for more than a month after the rendition of the judgment therein.”

There is no law or rule of practice requiring the court or plaintiff’s counsel to notify defendant or his counsel of each proceeding in an action during the course of its adjudication after defendant lias been served with summons or appeared therein; and in this particular case defendant cannot complain if he and his counsel failed to keep themselves informed of the proceedings in said action as the same lawfully and regularly progressed, unless there was some special stipulation disregarded or violated, whereby defendant or his counsel was misled, which is not shown in this case.

Defendants’ counsel affirms, in his affidavit in support of the motion to open said default, that some time during the month of April, 1891, he became sick, so that he could not attend to business; that said disability continued during the summer and autumn months of that year; that during the time of his illness affiant had a general understanding with all the attorneys practicing at said court that none of the causes in which he was employed as attorney would be set for trial without notice to him, or until other counsel could be employed by the client represented by affiant; “ and that he believes plaintiff’s attorney was included” in such understanding. There is no positive assertion in this affidavit, or any other filed in support of the motion to open said default, that such an arrangement had been entered into by plaintiff’s counsel; and plaintiff’s counsel positively denies in an affidavit that such stipulation or arrangement was ever sought from him or entered into by him.

In view of this showing, we think the court was justified in disregarding the alleged stipulation or agreement as an unauthorized assumption, which was evidently the view taken of it by the trial court in overruling the motion to open the default. It appears from his affidavit that defendants’ counsel was not so far disabled as to prevent his being about to a considerable extent during the period mentioned, and that he counseled with his client about this case; and it is clearly shown that, even in the absence of a stipulation, ample time was given for substitution of counsel if defendants’ counsel, after so long delay, was unable to represent him therein. Considering all the circumstances, we find no abuse of discretion in the order of the trial court denying appellants’ motion to set aside the default entered against them.

Appellants urge the further point that the complaint is insufficient to sustain the judgment for damages entered against them. This point cannot be sustained. It is true the complaint contains only a general allegation, to the effect that plaintiff has suffered damage in the sum of five hundred dollars, by reason of the wrongful ouster and withholding possession of said premises by defendants during the time alleged. Under such general allegation some damage may be proved, and on this appeal from the judgment, with the judgment-roll, only, upon review, we are not in possession of any showing whereby we can judge whether the proof received was germane to the allegation and the elements of damage which may be proved thereunder. (Code Civ. Proc., § 86; 3 Sutherland on Damages, § 991; Boone on Code Pleading, § 184; Dimick v. Campbell, 31 Cal. 239; Miller v. Myles, 46 Cal. 536; Martin v. Durand, 63 Cal. 39.)

The judgment must therefore be affirmed.

Affirmed.

Pemberton, C. J., and De Witt, J., concur.