Chambers v. City of Butte

Default — Judgment by — Vacation.—Granting a motion to yac ate a default against a, city is an abuse of discretion where the affidavit filed in support of the motion and to show excusable neglect merely stated that affiant, who was the city attorney at the-time of the motion, had an impression from some source that the matter was disposed, of and that he was unable to state why the city was allowed to be in default, and it also appeared from the record that the default was taken oyer five years after the defendant’s time for answering had expired and was then suffered to stand for fifteen, months without any effort being made to vacate it.

Appeal from Second Judicial District, Silver Bow Coimty. Dependant’s motion to set aside a default and judgment was-granted by McHatton, J: Statement of the case by the justice delivering the opinion. This is an appeal from the order of the district court granting a motion to open a default. The facts upon which the motion was granted are as follows: Complaint was filed July 31, 1882. The demurrer of the city of Butte was filed January 12, 1884. On October 3, 1885, the demurrer of the city was withdrawn, and defendant granted until November 15th to answer. On March 4, 1891, no answer of that-defendant being filed, its default was entered. On June 18, 1892, the plaintiffs proved up their case against the defendant, the city of Butte, and judgment was entered. The action was-in the nature of ejectment. On August 2, 1892, the defendant made a motion to set aside the default and the judgment. The motion was made upon the record, and also upon the affidavit of Mr. John W. Cotter, city attorney of Butte. After stating some formal facts, and also the facts of the-record which are above recited, the affidavit continues as follows: ‘ ‘ That, at the time said default was entered, I had no bn owl-edge of the existence of the pendency of the action against the-city of Butte until some time during the winter of 1891-92, or the spring of 1892, or later. That, when I first learned of said action, I was informed or received an impression from some source, that the matter as to the said city of Butte had been disposed of, or that it was not to be pressed against the said city, and am unable to state from what source I received the-said information or impression. That on or about the 18th day of June, A. D. 1892, the plaintiffs proved up in said action against the defendant, the city of Butte, and others, and that a judgment has been entered in said cause against this defendant and others. That affiant is informed and believes that the city of Butte has a good and valid defense against the said action so far as the said city is concerned, and, if it has an opportunity to defend the same, that -it will be able to show a good and meritorious defense. Affiant is unable to state why the said city was allowed to be in default in this matter, as its default was entered before my term of. office began, and during the incumbency of my predecessor in said office. Affiant herewith presents a verified answer of the defendant, the city of Butte, to the said action, said answer being verified by Lee Mantle, mayor of the said city, and asks leave to file the same, and asks that the said default and judgment be set aside, and that the city be allowed to defend the said action. [Signed] John W. Cottee. ” The default was opened. The plaintiffs appeal.