Jensen v. Barbour

Be Witt, J.—

It is not quite clear from the record when the nunc pro tunc order of March 21st was actually made. Respondent, in his brief, assumes that it was actually made on March 24th, nunc pro tunc of March 21st. Appellant, in his reply brief, does not controvert this assumption. If this be correct, then the court granted the motion of March 21st after it had been withdrawn. This would be something very unusual. The record says that the order was made March 21st, and was filed in writing March 24th, and that the leave to withdraw the motion was made after the order granting it. The facts seem to be that the motion to set aside the default was made, argued, granted, and withdrawn by leave of court, all on the same day, namely, March 21st. When the motion of March 28th, described in the statement above, came on for hearing, plaintiff, among his objections to the hearing of that motion, took the ground that the leave to withdraw the motion of March 21st was granted without notice to plaintiff.

Appellant does not refer us to any statute or any decision to the effect that he was entitled to notice of defendant’s application to withdraw this motion. Everything in reference to the motion of March 21st occurred on one day, and, it would appear, at about the same time. Many orders may be made, and are made, ex parte, and without notice to any one. Plaintiff may even dismiss his whole action if no counter-claim has been pleaded. We know of no provision requiring him to give notice to the opposite side of such action on his part, and we see no reason to hold that such notice must be given. The *572 making of this motion of March 21st was the asking by defendant for something which would be favorable to him; that is, to relieve him from default judgment. The granting of that motion was the granting to him of that which would be of benefit to him. If he chose to withdraw his application for this benefit, if he says, “I do not want this benefit for .which I have been asking,” it would seem that he might do this without notifying the other party, when there is nothing in the statute requiring him so to do. His withdrawal of this motion left the other party just where he was before the motion was made. In the absence of any reason being shown why such notice should have been given, we shall hold that it was not required.

On March 26th the court, upon a showing by affidavits, granted leave to defendant to renew the motion of March 14th — the first motion. Appellant claims that this leave was granted without notice to him. There was notice to plaintiff of the motion itself, and he was heard upon the motion. He had no complaint in that respect. He only complains that he was not notified that the defendant would ask leave to make the motion. We can say of this point, as of the last one discussed, that appellant has not shown us any reason, or any statute, or any authority, to the effect that there is required to be a notice to the opposite party for an application for leave to make the motion. No rights were affected by the leave granted, and the position of no one was changed. When it came to the hearing of the motion itself, the plaintiff did have notice, and appeared.

Again, appellant contends that it was error to grant, on March 26th, the leave to renew the motion of March 14th, because the decision of the motion of March 14th was res adjudicaba as to the subject-matter of the motion of March 28th. We are satisfied from an examination of the numerous authorities cited by counsel in their briefs that the motion of March 14th might not be renewed, except upon leave of the court. But the adjudicated cases do not hold that a motion once decided, cannot, at the same term, be again presented, by leave of court obtained, nor do the cases decided hold that such leave of court should not, under any circumstances, be granted. On the con-' *573 trary, it is held that such leave to renew may be granted upon good cause shown; that is to say, if, on the proposed motion of March 28th, the moving party set up grounds which he did not present upon the motion of March 14tfa, by reason of excusable neglect, the court, or the judge, as the case may be, may grant him leave to renew the motion, and that such granting of leave is an exercise of discretion, which will not be disturbed, unless there has been an abuse thereof. (Belmont v. Erie Ry. Co. 52 Barb. 637 , and other cases cited therewith in respondent’s brief.) The question was simply as to the renewal of the motion of March 14th. The motion of March 21st was out of the way by its withdrawal.

The facts set forth in defendant’s application of March 26th, and which came before the court in his motion of March 28th, we will state for two purposes: First, to ascertain whether the court abused a discretion in granting leave to renew the motion of March 14th; and, second, to ascertain whether the court abused a discretion in granting the motion of March 28th, when it was heard upon its merits. The motion was made upon the summons, and a verified answer of defendant, setting forth a meritorious defense, and upon the affidavits of defendant and his counsel, E. L. Bishop. By these papers the following facts appear: The summons was from the Eighth Judicial District Court of Cascade County. It was served January 29th, in Lewis and Clarke County. Under the law, the time to answer expired on March 9th. Defendant calculated the time in which he must appear as expiring on the 10th of March. He figured the days as of an ordinary year, forgetting that the year was a leap year, and that February had twenty-nine days. He thus made the mistake of noting the 10th of March, instead of the 9th of March, upon his office calendar. He intended, however, as he says, to appear before the expiration of the time, and take such steps as were necessary to present his defense. About March 4th he was called as a witness in the District Court oí Lewis and Clarke County, at Helena, in a case in which he was also advising counsel, but not counsel of record. He was an attorney at law. He was constantly engaged in that case until after March 10th. On the morning of March 10th his entry on his calendar reminded him that that was the last day for his *574 appearance in the case at bar. He immediately telegraphed to E. L. Bishop, attorney at law, at Great Falls, the county seat of Cascade County, and the place where the court was held, requesting him to appear and represent him in the case. About five o’clock in the afternoon of that day said Bishop appeared at the court-house at Helena, and told defendant that a default had been taken against him. The defendant was engaged in the lawsuit above mentioned, at the Helena court-house, and had but a few minutes to advise with Bishop. He told him that he thought the summons was defective, and requested him to appear, and take such steps as were necessary. Not until the following day did defendant have opportunity to advise Bishop as to his (defendant’s) error in calculating the time in which to appear. In fact, Bishop did not know anything about this at that time. Nor does it appear that at that time it occurred to the defendant that his default had been taken by virtue of his mistake in calculating the time. Bishop had left Great Falls on the morning of the 10th, and had come to Helena on business of his own. He did not receive Barbour’s telegram. He heard in Great Falls, before leaving, that defendant’s default had been taken. He had heard Barbour say that he had intended to defend the case, and so sought him in Helena, about five o’clock in the afternoon, and gave him the information. He found Barbour engaged in a lawsuit in the- courtroom, and discussed with him, or advised with him, as to the motion to open the default. Barbour told him his opinion as to the defect in the summons, and requested him to take such steps as were necessary. Bishop says that, in order to get his motion on the motion calendar of the Eighth Judicial District Court for the following motion day, it was necessary to prepare and forward it to Great Falls for filing at once. He therefore did so, making the grounds for the motion the alleged defect in the summons only. The next day, when Barbour was released from the case in the Helena District Court, he gave to Bishop the facts as to the mistake in calculating the time in which to appear; but in the mean time the motion had gone to Great Falls for filing, setting forth the one ground of motion only. This motion was denied on March 14th, in the absence of defendant’s attorney, so that attorney had no (opportunity to *575 ask the court to deny it without prejudice to renew the motion, or to make another motion upon additional ground.

All of these facts, as recited, were presented to the judge of the Eighth Judicial District Court on March 26th, and on this showing he granted the leave to renew the motion of March 14th. This was a matter of discretion. If the judge was satisfied that there was excusable neglect in not bringing forward all the grounds for the motion in the first instance on March 14th, he might grant leave to renew the motion so as to present those other grounds. (Ford v. Doyle, 44 Cal. 637 , and cases last above cited.) If defendant’s counsel had been present when the motion of March 14th was decided, it can not be doubted that the court, at his request, would have denied the motion without prejudice to renew the same. (Wallace v. Lewis, 9 Mont. 399 .) As counsel did not have opportunity to make the request on March 14th, and as the granting on March 26th, of leave to renew, is a matter of discretion, we are not prepared to say that there was abuse of this discretion by the judge of the lower court.

We therefore come to the motion of March 28th as res integra. It may be observed here that the facts as we have recited them are not wholly uncontroverted. Plaintiff’s attorney made an affidavit, which was before the court, “ but it was for the trial judge to reconcile contradictions, and to exercise his discretion in the matter.” (Whiteside v. Logan, 7 Mont. 381 ; Pincus v. Dowd, 11 Mont. 88 ; Bernard v. Herzog, ante, p. 519.) In comparing the facts of this case with those of the other cases decided in this court upon the question of setting aside defaults (which cases are collected in Heardt v. McAllister, 9 Mont. 405 ), it is to be observed that the question in the case at bar is whether the District Court abused a discretion in setting aside the judgment.

Appellant cites the following cases: Lowell v. Ames, 6 Mont. 189 ; Donnelly v. Clark, 6 Mont. 135 ; Briscoe v. McCaffery, 8 Mont. 337 ; Elliott v. Shaw, 16 Cal. 377 ; Welch v. Challen, 31 Kan. 696 ; Smith v. Tunstead, 56 Cal. 175 ; Smithy. Watson, 28 Iowa, 218 ; People v. Rains, 23 Cal. 128 ; Schroer v. Wessell, 89 Ill. 113 ; Babcock v. Brown, 25 Vt. 550 ; 60 Am. Dec. 290 ; Robertson v. Bergen, 10 Ind. 402 ; Langdon v. *576 Bullock, 8 Ind. 341 ; Grootemaat v. Tebel, 39 Wis. 576 ; Garner v. Erlanger, 86 Cal. 60 ; O’Connor v. Ellmaker, 83 Cal. 452 ; Baltimore & O. R. R. Co. v. Flinn, 2 Ind. App. 55 . It is to be observed that in each one of these eases the application to open the default had been denied by the lower court, and the appellate court affirmed such denial, holding that there was no abuse of discretion below; so the facts of those cases are not, by necessity, precedents, where the appellate court, as in the case at bar, is asked to hold that the court below abused a discretion in granting the motion to open the default.

Furthermore, appellant cites Coleman v. Rankin, 37 Cal. 247 . The lower court denied the motion, and the appellate court held that there was no abuse of discretion. In Stilson v. Rankin, 40 Wis. 527 , cited by appellant, the motion to open the default was granted by the lower court, and reversed by the appellate court, principally upon the ground that there was no showing of a meritorious defense. The other case which appellant presents is Bailey v. Taaffe, 29 Cal. 423 . Here a motion to open the default was granted, as in the case at bar. The order granting it was reversed by the appellate court. A reading of the record discloses what seems to be a clear case of abuse of discretion by the lower court; an abuse which seemed so manifest that an explanation is appended in a note, in order that injustice may not be done the judge of the lower court. This note explains that the order of the judge below was practically a proforma one. But some of the remarks in that case are pertinent as follows: “The discretion intended, however, is not a capricious or arbitrary discretion, guided and controlled in its exercise by no fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered is sufficient or not, or whether the defense set up is with or without merit in foro legis, when examined under those rules of law by which judges are guided to a conclusion, the judgment of the lower court will not be disturbed.”

*577 In the case at bar we are of opinion that discretion had ■some office to perform, and, that under the facts shown on the motion of March 28th, there was no abuse of discretion in the •court below, in opening the default. (Heardt v. McAllister, 9 Mont. 405 , and cases therein cited.)

The order is therefore affirmed.

Affirmed.

Blake, C. J., and Harwood, J., concur.