Farmers' Co-Operative Ass'n v. Roper , 57 Mont. 42 ( 1919 )

MR. JUSTICE COOPER

delivered the opinion of the court.

The complaint in this action was filed in the court below December 20, 1916; service of summons obtained on C. C. Roper, one of the defendants, on that day, and on defendant Eglantine L. Roper on December 28. No appearance having been made by the former, on January 10, 1917, his default was taken, and on January 13 final judgment in the sum of $1,978.91 rendered and entered against him. On January 20, 1917, he filed a motion to set aside his default, supported by his own affidavit, the affidavit of his codefendant, and the affidavit of his attorney, R. E. Hammond. On March 17, 1917, the district court, upon the proof presented, made the order setting aside the default from which plaintiff appeals.

The affidavit of C. C. Roper discloses that on the date of [1] service of summons he employed R. E. Hammond, an attorney at law residing at Havre, Hill county, to represent him in the defense of said action; that after he had fully informed said Hammond of all the facts in his ease, he was advised by him that he had a good defense upon the merits; that he would prepare, serve and file a demurrer to the complaint in ample time to protect affiant; that said Hammond had long been a practitioner before the United States Land Office at Havre, and was then exceedingly busy, doing an unusual amount of work on behalf of applicants for entry under the “640 Acre Homestead Law,” which had just become effective, and because of important business was obliged to leave the state temporarily; that affiant was informed and believed that prior to the departure of his said attorney, and at a time when he was not in default, his said attorney had prepared, served and filed a demurrer to the complaint, and did not learn that he had inadvertently failed to do so until January 17, 1917; that said R. E. Hammond is insolvent, and the damage caused by his inadvertence cannot be collected by reason thereof. It further states that he has also fully and fairly stated all the facts in the case to his present attorney, F. N. Utter, and is advised by him that he has a good defense upon the merits.

The affidavit of Eglantine L. Roper sets forth substantially the same facts, and in addition thereto the following: That she had employed said R. E. Hammond to represent her in said action; that he had advised her that the interposition of a demurrer to the complaint would be proper, and later, on or about January 9, 1917, had told her that he had “attended to the matter and that everything had been taken care of,’'’ and that she believed said statement until January 17 when she was informed by letter from Hammond that the demurrer he-had prepared was in a certain place in his office, describing it; that she made search and found it in the place designated.

With the affidavits, an answer was tendered by C. C. Roper, denying all the allegations of the complaint. Affidavits were also filed denying that defendants had at any time -entered into the agreement set forth in the complaint, and alleging affirmatively other matters material to a defense to the action upon the merits.

An affidavit was also filed by R. E. Hammond, confirming substantially many of the facts set forth in the affidavits of the defendants, and further stating that in his opinion a demurrer was a proper and necessary pleading to challenge the sufficiency of the complaint because its averments were indefinite and uncertain; that he first recalled that he had not filed the demurrer while en route to Washington, D. C., and immediately wrote a letter informing defendant Eglantine L. Roper ‘ ‘ where the demurrer could be found in his office, and requested her to file the same.” None of the facts set forth in the affidavits above referred to are controverted, appellant contenting itself with an attack upon their sufficiency to warrant the district court in setting aside the default.

Did the court below abuse its discretion in opening up the default of defendant and permitting him to defend upon the merits? In Nash v. Treat, 45 Mont. 250, Ann. Cas. 1913E, 751, 122 Pac. 745, Chief Justice Brantly, for this court, laid down the rule that “when the motion is made promptly and is supported by a showing which leaves the court in doubt or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion.” By section 6589 of the Revised Codes, the duty to “relieve a party or his legal representative from a judgment, order or other proceeding taken against him through Ms mistake, inadvertence, surprise or excusable neglect” in a proper case, is imposed upon the district court, and the presumption that its discretion has been properly exercised is always present in cases of this character. “Whether it [the default] should have been set aside was a matter within the sound legal discretion of the court below, and with its determination we may not interfere, unless there was a manifest abuse of such discretion.” (Donlan v. Thompson Falls C. & M. Co., 42 Mont. 257, 112 Pac. 445, citing many cases from the first to the fortieth of the Montana Reports.) Even in the case of Lovell v. Willis, 46 Mont. 581, Ann. Cas. 1914B, 587, 43 L. R. A. (n. s.) 930, 129 Pae. 1052, where the action of the court below in setting aside a default was reversed, this court, in its majority opinion, remarked: “If the affidavit had made a disclosure of facts showing that the character of defendant’s business was such as to absorb his attention and was so pressing that the average man would, under similar circumstances, have been likely to forget his other important interests, the conclusion of the court thereon might have been justified.” The showing here made, we are satisfied, fully met all the requirements of the statute, and accommodates itself to all the expressed views of this court upon the matter of relief in the circumstances contemplated by the Code section referred to. (Greene v. Montana, Brewing Co., 32 Mont. 102, 79 Pac. 693; Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814; Pengelly v. Peeler, 39 Mont. 26, 101 Pac. 147.)

In Collier v. Fitzpatrick, 22 Mont. 553, 57 Pac. 181, it is said: ‘ ‘ Each case in which the court is asked to set aside a judgment upon the ground of excusable neglect in the moving party must be decided upon its own facts. The -design and purpose of the statute is to further the administration of justice so that the very right upon the merits may be determined, and to that end to grant relief from excusable neglect in cases where diligence is shown in applying promptly for the relief sought, provided the opposite party be not deprived of any advantage to which he may properly be entitled.”

The court committed no abuse of discretion in entering the ■order appealed from, and it is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Matthews concur.