Western Security Co. v. Lafleur

The opinion of the court was delivered by

Reavis, J.

Appellant brought an action against defendants to foreclose a mortgage executed by defendants Lafleur and wife on real estate in Stevens county. Default was entered against defendants Lafleur and wife, Spokane Ralls & Northern Railway Company and Erank 0. Sharkey, for failure to appear in the action. Defendant Douglas Grifiitts and Uuzum and wife appeared and demurred to the complaint, and afterwards on January 5, 1897, filed their answer nunc pro tunc as of date October 20, 1894. On May 28, 1895, appellant served a notice that the cause would be set for trial on the law day appointed by the rules of the superior court for setting causes for trial. The cause was set for trial on December 9, 1895, and was tried and findings of fact and conclusions of law filed by the court in accordance with the allegations of the complaint. There was no appearance of the defendants at the trial. Respondents afterwards objected to signing the decree, but in January, 1896, the decree of foreclosure was entered in conformity to the findings and conclusions. An order of sale was issued on the decree, and the mortgaged premises were sold and purchased by appellant, which received a certificate of sale from the sheriff. On December 29, 1896, respondents served and filed a motion to set aside the judgment on the ground that it was irregular and improperly granted, and sucia motion was supported by tbe affidavit of the attorney. On January 5, 1897, tbe court entered an order granting tbe motion and vacating tbe decree and judgment and setting aside tbe sale, wbicb bad been made. Appellant excepted to tbis order and appeals therefrom.

Tbe complaint is tbe usual one in a foreclosure of mortgage. Tbe only mention of the respondents is in one paragraph in wbicb it is stated they claim some interest or lien in or to tbe mortgaged premises, wbicb lien appellant alleges is inferior and subsequent to tbe lien of the mortgage. ^Respondents deny tbe material facts of tbe complaint on information and belief and admit that they claim some right or interest or lien in tbe mortgaged premises. They do not set up what their claim or interest is. Tbe only reason assigned by respondents in their application to tbe court for vacation of tbe judgment was that no notice of trial or bearing of said cause was given these defendants, or either of them, or their attorneys, at tbe time said bearing was bad and judgment taken, and that no copy of tbe said decree or judgment has ever been served upon them. Tbe affidavit in support of tbis motion states:

“Ho notice of bringing tbis cause to trial at the time it was brought to trial and decree rendered was ever served on myself or said defendant, and that no copy of said decree or judgment was ever served upon us or either of us or our attorneys to my knowledge.”

It may be said upon tbis motion and upon tbe facts stated in tbe affidavit that tbe statute (Laws 1893, p. 416, § 35) does not require notice of tbe time tbe cause will be tried, but only requires a notice of setting tbe cause for trial shall be served on tbe opposite party three days before any time fixed by tbe rules of tbe court for setting tbe cause for trial, and that tbe case will be brought on for trial at such time as the court shall fix. It is not necessary for the validity of a decree or judgment that it he served upon any party to the cause after the same is filed; and, again, there was no showing of merits in favor of respondents or any valid defense disclosed in the application to vacate the judgment. This is essential. The order to vacate the judgment was made without any grounds to sustain it. It is, therefore, reversed with directions to the superior court to annul the order of vacation and reinstate the judgment and decree of foreclosure.

Scott, C. J., and Anders, Gordon and Dunbar, JJ., ■concur.