The prosecuting attorney of Twin Falls county instituted this action against Catherine M. Braun as owner of the premises, and E.L. Rogers as operator, to abate under 1939 Sess. Laws, chap. 222, as a public nuisance a place where alcoholic liquors were illegally kept and sold.
Upon respondents' default following due and legal service, overruling of respondents' respective and separate demurrers and failure to plead further within the time granted and after appellant had submitted proof adequately establishing a prima facie case, judgment of closure was entered.
This appeal is from an order setting aside the default because of the claimed excusable fault and neglect of their attorney in failing to file answers in time.
Under sec. 5-905, I. C. A., as amended 1921, the neglect of the attorney in causing or permitting the default is a mandatory excuse. (Brainard v. Coeur d'Alene Antimony MiningCo., 35 Idaho 742, 208 P. 855; Wagner v. Mower, 41 Idaho 380,237 P. 118; Miller v. Brinkman, 48 Idaho 232, 281 P. 372;Kivett v. Crouch, 61 Idaho 536, 104 P.2d 21, at 25.)
While there are vagrant, hypothetical expressions
to the effect that under such circumstances no showing of merits is required as a concurrent condition precedent (Weaver v. Rambow, 37 Idaho 645, 217 P. 610), the established and repeated rule is that unless facts showing a meritorious defense are set forth by way of accompanying answer or affidavit it would be idle to set aside the default even though the neglect be that of the attorney, not the litigant, and where defaults have been set aside there have been proffered defenses. (Brainard v. Coeur d'Alene Antimony Mining Co.,supra; Consolidated W. M. Co. v. Housman, 38 Idaho 343, 349,221 P. 143; Wagner v. Mower, supra; Miller v. Brinkman,supra; Voellmeck v. Northwest M. L. Ins. Co., 60 Idaho 412,92 P.2d 412; Beltran v. Roll, (Ariz.) 7 P.2d 248.)
Respondent Braun's answer admits she is a nonresident of the state. By filing her demurrer and proffering her answer she appeared generally and thus has submitted herself to the jurisdiction of the court. (Wayne v. Alspach, 20 Idaho 144, 149,116 P. 1033; Central Deep Creek Orchard Co. v. C. C. TaftCo., 34 Idaho 458, 202 P. 1062; Elliott Healy v. Wirth,34 Idaho 797, 198 P. 757; Armitage v. Horseshoe Bend Co., 35 Idaho 179,204 P. 1073; Willman v. Friedman, 4 Idaho 209,38 P. 937, 95 A.S.R. 59; McDonald v. McDonald, 55 Idaho 102,39 P.2d 293; Newman v. Cheesman Automobile Co., 33 Idaho 685,197 P. 826; Pingree Cattle Loan Co. v. C. J. Webb Co., 36 Idaho 442,211 P. 556; Treinies v. Sunshine Mining Co., 99 Fed. (2d) 651, 308 U.S. 66, 84 L. ed. 85; Poage v. Co-operative Pub.Co., 57 Idaho 561, 66 P.2d 1119, 110 A.L.R. 1322.) Hence her plea of non-notification under sec. 1006, chap. 222, 1939 Sess. Laws, p. 482 (other than by summons), is not now a defense.
Her main plea is that of ignorance of any illegal acts. This is not a defense against abatement proceedings of a liquor nuisance, because it is a proceeding in rem against the property. (State ex rel Eubanks v. Dick, (Kan.)92 P.2d 92; Linsley v. Werner, (Colo.) 283 P. 534; Holmes v. UnitedStates, 269 Fed. 489, 12 A.L.R. 427.) Also because the owner has a remedy under the statute. (Sec. 1011, chap. 222, 1939 Sess. Laws, p. 483; Gaskins v. People, (Colo.) 272 P. 662, 62 A.L.R. 693; United States v. Brown, 31 Fed. (2d) 307; Hill v. UnitedStates, 44 Fed. (2d) 889; United States v. All Buildings, etc.,28 Fed. (2d) 774.)
Respondent Rogers' answer contained only specific denials, no affirmative showing of any defense. (Harr v. Knight, 18 Idaho 53,108 P. 539.) The showing of merits must set forth the facts of defense so the trial court in the first instance and the appellate court in the second may determine whether the submitted defense is meritorious. This is for the court, not counsel or his attorney, to decide. (Holland Bank v. Lieuallen,6 Idaho 127, 53 P. 398; Holzaman v. Hereberry, 11 Idaho 428,83 P. 497; Beck v. Lavin, 15 Idaho 363, 367, 97 P. 1028; Harrv. Knight, supra; Parsons v. Wrble, 19 Idaho 619, 115 P. 8,13; Hall v. Whittier, 20 Idaho 120, 127, 116 P. 1031;Miller v. Brinkman, supra; Voellmeck v. Northwest M. L. Ins.Co., supra; Beltran v. Roll, supra; Thompson v. Caddo CountyBank, (Okla.) 82 P. 926; Linsey v. Goodman, (Okla.)157 P. 344; Dana v. Thaw, 107 N.Y. S. 870; Dandowitz v. Duane,62 N.Y. S. 744; Black v. New York Life Ins. Co., 126 N.Y. S. 334.)
Claimed defenses bruited in respondents' brief are of no avail and cannot take the place of an answer or affidavit of merits.
No facts constituting a defense having been presented by respondents the default should not have been set aside.
The judgment is reversed and remanded with directions to reinstate the original judgment of abatement.
Costs to appellant.
Budge, C.J., and Morgan and Holden, JJ., concur.