Holland Bank v. Lieuallen

QUARLES, J.

— Plaintiff brought its suit to foreclose a mort- ’ gage. Summons was duly issued and served. After the time for answering had expired, the default of the defendants was entered, and judgment of foreclosure entered in conformity to the prayer of the complaint. After the expiration of the term of court at which the judgment was rendered, the defendants applied to the court for an order setting aside the default and judgment. In support of the application, the affidavit of the defendant, A. A. Lieuallen was filed to the effect that, after the ■service of summons, he saw one of the attorneys for the plaintiff, ■and requested that the cause be not placed upon the calendar at the succeeding term of court, commencing May 17, 1897, and that the cause be continued until the fall term of court, without defendants waiving any of their rights; that to said request he was told by said attorney to see Mr. Eeed, the agent for the plaintiff ; that said Eeed suggested that things stand awhile, and he would communicate with the office at Spokane, and would let the defendant know if he would agree to a continuance; that after this affiant called at the office of said Eeed several times, but failed to see said Eeed; that affiant neglected to file •answer for himself and wife within the time required by the summons, while waiting to hear from said Eeed, who failed to inform affiant; that by examination at the opening of the May term of court affiant ascertained that no default had been entered, and that the cause was not on the calendar, from which •affiant concluded that plaintiff had agreed to carry the cause over till the fall term of court, for which reason the affiant gave no further attention to the cause at the said May term of said *130 court; that about the 20th of October, 1897, affiant first learned that said cause had been placed on the calendar at the May term, default entered, and judgment therein entered on the sixteenth day of June, 1897; that affiant has fully and fairly stated all the facts of the case in said cause to his counsel, George W. Goode, an attorney at law residing at Moscow, Idaho, and after such statement is by him advised that he and his wife have a good and substantial defense to said action on the merits, and verily believe the same to be true. Plaintiff filed the counter-affidavit of Theodore Beed in opposition to said application, in which said Beed corroborates defendant’s affidavit in some respects, and contradicts it in others. Said Beed deposed that he told the defendant that he had no authority to agree to a continuance of the cause till the fall term; that he would telephone to the managing agent of plaintiff at Spokane, A. F. Yan Hall, to see if said Yan Hall would agree to such continuance; that he did telephone, and found that said Van Hall was then on the road between Spokane and New York; that one or two days afterward he saw said Lieuallen, and informed him that he had telephoned to Spokane, and that there was no one there authorized to agree to a continuance.

The defendant did not show good cause for setting aside the judgment and default. No agreement to continue the cause was shown, and no good excuse for not answering prior to entry of default is shown. The setting aside of a default is a matter of discretion, reposed in the trial court, whose action will not be disturbed on appeal, unless there has been an abuse of such discretion. It does not appear in this case that such discretion was abused. As to what should be shown on application to set-aside a default judgment after the term at which it is rendered, is matter of practice. Correct practice and the rule in this state to be followed is that, in addition to showing one of the grounds mentioned in section 4429 of the Bevised Statutes, the defendant must, in his affidavit of merits, state the facts upon which his defense is based — must set forth the substance of his defense, so that the court may judge for itself whether the alleged defense is frivolous o-r meritorious. No such showing was made in this case. We are not willing to sanction a rule of practice which substitutes for the judgment of the trial court, as to whether *131 the defendant has a meritorious defense or not, the opinion of some attorney whose opinion is based upon ex parte statements of an interested party not made under oath. Such practice has prevailed in one or more states, but its recognition here, we think, would be fraught with dangers resulting in vexatious delays, oftentimes without any grounds therefor. The order and judgment appealed from are affirmed. Costs of appeal awarded to respondent.

Sullivan, C. «T., and Huston, J., concur.