Kynaston v. Thorpe

MORGAN, J.

This action was commenced for the purpose of procuring a decree of the district court quieting appellant’s title to the waters of a certain stream in Bannock county. The complaint was filed on July 21, 1913, and summons was thereupon issued and served upon respondent and his codefendant, Annie B. Halvorsen. On August 19, both defendants appeared and demurred to the complaint. On December 12th of the same year the demurrer was withdrawn and the defendants were given twenty-five days within which to serve and file an answer. On January 27, 1914, no answer having been served or filed, judgment by default was entered. On July 20th of that year a motion to vacate the judgment and set aside the default was filed, based upon the grounds: First, that they were permitted to be taken and entered through mistake, inadvertence and excusable neglect on the part of respondent; second, that the judgment does not conform to the allegations in or the prayer of the complaint. The motion was based upon the records and files of the action and was supported by certain affidavits, among them being one made by respondent showing that he first became aware that a default had been entered against him on or about May 21, 1914. On May 15, 1915, an order was entered granting the motion upon the ground first above mentioned. This appeal is from that order.

It has been frequently decided by this court, and may be said to be a settled rule, .that granting or refusing to grant a motion to vacate a judgment and set aside a default which have been permitted to be taken and entered through mistake, inadvertence, surprise or excusable neglect is a matter which rests largely within the sound judicial discretion of the trial judge, and that his action in so doing will not be reversed except in cases wherein that discretion has been abused. In cases of this kind, however, this rule is to be applied together with the one announced in case of Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031, wherein it was said “The application was heard on affidavits and files in the case, and we have all the showing before this court that was before the trial judge who granted the motion, and we are therefore in as favorable a position for considering the matter as was the trial judge. (Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8; Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752.) ” "We will therefore examine and be governed by the facts relied upon by respondent, which are undisputed.

It appears that after being served with the summons, and before the time for answer had expired, respondent and his codefendant consulted and retained an attorney, paid him a portion of an agreed retainer fee, and promised to pay the balance thereof within a few dajos after returning to their homes, which are located several miles from the city wherein the attorney resides; that before going home respondent saw one Douglas, who was indebted to him, and with whom he arranged to pay the balance due from him to the attorney; that although Douglas promised respondent to make the payment to the attorney, he forgot all about it and went to California without doing so. It further appears that the attorney filed the demurrer and stood ready to prepare and file an answer for both defendants, and a cross-complaint on behalf of respondent, upon receiving the balance of his fee; that he heard nothing from either of his clients, and upon being asked by counsel for appellants what action he intended to take with respect to the demurrer, he consented that it might be overruled, and was granted twenty-five days within which to answer, as hereinbefore stated. The attorney wrote to his clients relative to the case, but his letters to Thorpe were directed to the wrong address and were not delivered to him nor were they returned to the writer. Respondent presented with his motion an answer and cross-complaint, which appear, if true, to state a complete defense to the cause of action alleged in the complaint and a good cause of action against appellants.

From the foregoing it will be seen that twenty days elapsed after the answer was due and before the entry of judgment;, that after employing counsel and arranging with Douglas to pay the balance due on his fee more than nine months intervened, during which respondent made no inquiry about the matter, nor does he appear to have sought to ascertain whether or not the fee had been paid or whether or not his interests were being safeguarded, and that, after being informed that a default judgment had been taken against him, nearly two months more were permitted to go by, during which he did not offer to make an appearance. It does not seem to us that respondent has conducted himself in this matter as a reasonably prudent man would do under like circumstances, and that his neglect, for so long a time, to look after his important business is not excused or satisfactorily explained by the showing made.

It is not contended that the attorney was taken by surprise, nor that the entry of the default and judgment was due to any neglect upon his part. He knew that he had twenty-five days within which to answer after the demurrer was withdrawn, and he did not do so because his fee was not paid according to the agreement with his clients. In this he was within his rights. An attorney is not bound to extend credit to his clients, particularly when no agreement has been made that he shall do so. When he withdrew the demurrer he was still acting for respondent, and respondent was bound by his acts. (Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814; Liverpool & L. & G. Ins. Co. v. Perrin, 10 N. M. 90, 61 Pac. 124; Ramey v. Smith, 56 Wash. 604, 106 Pac. 160.)

In his affidavit respondent says: “That it was entirely through mistake, inadvertence and misunderstanding that the said judgment by default was entered; that I was ready at all times with my witnesses to come to Pocatello when notified that the case, had been set or that my presence was required, and if I had received word, or had been advised that Mr. Douglas had not paid the balance of my retainer fee to Colonel Ferguson, I would have sent him the same; and it was v holly due to said mistake, inadvertence and neglect of the said Douglas that I was prevented from appearing and answering in this action.7’

The only reason offered for the failure to make the payment of the fee and thereby complete the arrangement with the attorney to look after the case is that Douglas “forgot all about it.” Had respondent sought to explain his failure to complete the employment of his attorney upon the ground that he forgot to pay the fee, it would hardly be contended that the excuse would be sufficient. When he arranged with Douglas to make the payment, he constituted the latter his agent to perform that duty, and is bound by his failure to do so.

The contention that the judgment does not conform to the allegations of the complaint nor to the prayer thereof is not sustained by the record.

We conclude that the action of the trial judge in vacating the judgment and setting aside the default was an abuse of judicial discretion. The order appealed from is reversed. Costs are awarded to appellants.

Sullivan, C. J., concurs.