Jerry v. O'Connell , 63 Mont. 48 ( 1922 )

MR. COMMISSIONER HORSEY

prepared the opinion for the court.

These are appeals by defendant from a default judgment and from a substitute order denying his motion to vacate the default judgment and permit him to answer and defend upon the merits.

After the transcript and the briefs of both parties had been filed, plaintiff made a motion in this court to strike certain portions of the transcript and to dismiss this appeal. A copy of this motion was served upon the defendant prior to the filing thereof. Thereafter this court made its order granting the motion to strike and dismissed the appeal from the substitute order, but denied the motion to dismiss the appeal from the judgment.

At the time set for the oral argument of this cause, counsel for defendant made a statement in regard to this motion to strike, from which this court gained the impression that defendant had not been advised of the filing of such a motion, or of any of the proceedings in connection therewith, and upon his application leave was granted defendant to serve and file a supplemental brief, which he did. In this brief defendant for the first time presents his argument and authorities in opposition to the motion to strike, and asks us to reconsider and hold for naught the order sustaining said motion.

Had we been aware at the time of the oral argument that counsel for defendant had been served with a copy of the motion, that he filed no brief in opposition thereto, and that it was his purpose, at the time he made his request for leave to file a supplemental brief, to present only such argument and authorities as he could have presented before the motion was finally disposed of, we would have denied his request. It now appears that defendant had his day in court and had every opportunity to present the argument contained in his supplemental brief prior to the making and entering of the order complained of. However, we have carefully considered the argument made and authorities cited in defendant’s supplemental brief, and still feel convinced of the correctness of our ruling on the motion.

Defendant presents only one specification of error in his brief on this appeal, namely, that the court erred in its substitute order denying the motion of defendant to vacate the default judgment and permit him to answer and defend upon the merits, but, as stated heretofore, the appeal from this order has been dismissed.

We have nevertheless carefully examined the judgment-roll, being the only matter left in the transcript since the ruling on the motion to strike, and from an inspection thereof we find that the complaint states a cause of action, and that the judgment is regular on its face. No error being apparent upon the judgment-roll, we advise that the judgment appealed from be affirmed.

Per Curiam : For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

Affirmed.