Horton v. New Pass Co. , 21 Nev. 184 ( 1891 )

While the nisi prius court might, under the circumstances of this case, have set aside the default, and permitted the defendant to answer, yet I can not say there has been such abuse of that discretion with which the court is clothed as would justify a judgment of reversal.

The granting or refusal of a motion to set aside defaults has always been held to be a matter within the sound legal discretion of the lower court, and unless there has been an abuse of that discretion, it has not been the practice in this court to reverse such decisions. (Howe v.Coldren, 4 Nev. 172; Harper v.Mallory, Id. 449; State v. MiningCo., 13 Nev. 194; Ewing v. Jennings,15 Nev. 81; Garner v. Erlanger, 86 Cal. 60;Underwood v. Underwood, 87 Cal. 523.) The complaint was filed March 1, 1890. On the 5th day of March, 1890, summons was served on the defendant. On the 14th day of April, 1890, a demurrer was filed, and on the 16th day of April, 1890, the question as to the sufficiency of the complaint was argued and submitted to the court for its decision, the demurrer was overruled, and the defendant given fifteen days in which to file its answer.

On the 2d day of May, 1890, the defendant not having filed its answer, the plaintiff by his attorney had the default of the defendant entered by the clerk and judgment rendered thereon. On the 21st day of May, 1890, the attorney for the defendant filed and served a notice on the plaintiff, setting forth "that he would on the 25th day of June, 1890, move the court to set aside the judgment entered by default, on the ground of surprise, inadvertence, mistake and excusable neglect to file answer herein, and on the ground that the default was taken before the time for answering had expired. On the 9th day of October, 1890, the motion to open up the default was argued and submitted, on the affidavit of the attorney for the defendant, wherein he alleges that the minutes of the court were not in conformity with the order, as made by the judge thereof, and that he was called away to Belmont, Nye county, where he was detained in attendance on court longer than he expected to be, and did not return to Austin until after the default of the defendant had been entered." After argument, the court denied the motion.

There is no merit whatever in the first point raised by the affidavit, as to the second ground the absence of the attorney. It appears from the affidavit that he left Austin on the 26th day of April, 1890, to go to Belmont for the purpose of attending court at that place; "that he had prepared the answer in this case, and left it in his office." There is no reason given why he did not file the answer before leaving for Belmont.

If the judgment in this case is set aside, it will be on the sole ground of neglect, carelessness, or mistake of the attorney, and courts have steadily refused to vacate judgments under such circumstances. In the case of Smith v. Tunstead, 56 Cal. 177, the supreme court said: "An examination of the affidavits impresses us with the conviction that the plaintiffs were not negligent. But their attorneys were, and parties in this state have in such cases as this been held not entitled to relief on account of the negligence of their attorneys." Section 68 of our practice act is copied from the California statute. In the case ofPeople v. Rains, 23 Cal. 128, the attorney for the defendants had prepared a demurrer to file to the amended complaint, but failed to file it in time, in consequence of a mistake on their part as to the day on which the time for filing would expire. They, by a miscalculation of time, supposed that the time would not expire until the day after it did; default was taken, and the court refused on application to set it aside. The rule as above announced is supported by the following cases: Ekel v. Swift, 47 Cal. 619; Elliott v.Shaw, 16 Cal. 377; Haight v.Green, 19 Cal. 117; Mulholland v.Heyneman, Id. 605; Babcock v.Brown, 25 Vt. 552; Davison v.Heffron, 31 Vt. 688; Kerby v.Chadwell, 10 Mo. 393; Bosbyshell v.Summers, 40 Mo. 172; Gehrke v. Jod,59 Mo. 522; Matthis v. Town of Cameron,62 Mo. 504; Foster v. Jones, 1 McCord, S. C. 116; Burke v. Stokely, 65 N. C. 569;Phillips v. Collier, 13 S. E. Rep. 260;Merritt v. Putnam, 7 Minn. 493;Tarrant Co. v. Lively, 25 Tex. Supp. 399;Smith v. Watson, 28 Iowa, 218; Jones v. Leech, 46 Iowa, 186; Spaulding v.Thompson, 12 Ind. 477; Phelps v. Osgood,34 Ind. 150; Brumbaugh v. Stockman,83 Ind. 583; Kreite v. Kreite, 93 Ind. 583;Hoag v. Society, 27 N. E. Rep. 438;Parker v. Bank, Id. 650; Welch v.Challen, 31 Kan. 696; Green v. Bulkley,23 Kan. 130; Kyle v. Chase, 14 Neb. 531;White v. Ryan, 31 Ala. 400; Holloway v.Holloway, 11 S. W. Rep. 233; Fowler v.Colyer, 2 E. D. Smith 125; Mulhern v.Hyde, 3 E. D. Smith 177; Burger v.Baker, 4 Abb. Pr. 12; Thielman v. Burg,73 Ill. 293; Shroer v. Wessell, 89 Ill. 114;Gray v. Sabin, 87 Cal. 211; O'Connor v. Ellmaker, 83 Cal. 452. The reason for the strict enforcement of this rule is, that the law regards the neglect of the attorney as the client's own neglect, and will give no relief from the consequences thereof. As said in the case of Foster v. Jones, supra. "It is difficult to foresee all the consequences which might result from permitting a party, after judgment and execution, to set aside the proceedings against him on the ground of negligence or ignorance of his attorney. It would very much tend to destroy all the rules of pleadings and produce endless litigation." In my opinion, the judgment of the district court ought to be affirmed.