White v. Northwest Stage Co.

By the Court, Bonham, J.:

The principal difficulty which this case presents is the complicated condition of the pleadings and proceedings as disclosed by the transcript." Some idea of the peculiar character of the proceedings, on the part of the defendant, is disclosed by the foregoing statement of the case, which is only a partial synopsis of what was done; the object being to prevent only those proceedings which are pertinent to the questions presented by the assignment of errors. And it is a somewhat remarkable feature of the case, that during its pendency in the court below, for about the period of one year, and the frequent appearance,- disappearance and reappearance of various members of the bar of Eastern Oregon and Washington Territory, on behalf of defendant, that the cause finally culminated in a judgment for want of an answer. And it is for the purpose of obtaining leave to defend the cause, upon its merits, that, the same is appealed to this Court.

The transcript presents no bill of exceptions; but the first error assigned in' the notice of appeal is, that there was no legal service of process on defendant to place it in default. To this objection we answer that the record shows a volun *102 tary appearance entered in tlie cause, on the part of defendant, by attorneys, whose right to so appear is not questioned; the result of which is the waiver of any defect-or irregularity in the service of process. (Rogue River Mining Company v. Walker, 1 Or. 341 ; Harker v. Fahie, 2 Or. 89 .)

Appellant, in the next place, objects that the court had no authority to enter judgment in this action without some proof of the plaintiffs claim. This objection is also untenable, for tw£> reasons:

In an action- for damages, arising upon contract, the plaintiff is entitled to judgment for the amount claimed, without proof thereof, if the defendant fail to answer within the time prescribed by law. And in the second place, if it were necessary to prove such claim; the law would presume that it had been done in the absence of a showing to the' contrary. (Civil Code, § 246; Dimick v. Campbell, 31 Cal. 238 .)

The third objection urged by the counsel for appellant is that the complaint does not state facts sufficient to constitute a cause of action, in that it is not alleged that Kinney and Heed, or either of them, was agent' of the Northwest Stage Company, and because the word “collect” occurs in the order of Keed to Kinney, on which plaintiff claimed her passage from Kelton to Baker City.

While plaintiff’s complaint is subject to criticism in the respects mentioned as to matters of form, yet we think it does substantially aver that Need and Kinney were the agents of defendant, and that it is sufficient to sustain the judgment; for the plaintiff does charge that on her arrival at the town of Kelton, on or about the 3d day of November, 1871, she was the lawful owner and holder for value of the order of defendant, as hereinbefore set out in the statement of this case. And while there is an ambiguity in the terms of the order, caused by the use of the word “collect” as it is written in the transcript, yet we think it pretty clearly appears from the context that the word as written does not convey the idea intended by Mr. Beed, the maker of the order. It would hardly be a fair reason to give for collect *103 ing fare of plaintiff that it had already been paid. We think it more fair and reasonable to presume that a mistake was made, either in the original or in copying the record.

The only other error assigned, which was relied upon in the argument, is the overruling of defendant’s motion to set aside the default and permit an answer to be filed upon the merits. The court below (McArthur, J.), in passing upon the motion to set aside the default of defendant, assigns the following reasons for its refusal, to wit: “That the defendants have been guilty of laches, from which this court cannot relieve them without doing palpable injustice to the plaintiff. That, though the defendant Huntley was served out of Baker County, this judgment is valid for the reason that the record shows the appearance of authorized attorneys for the defendant, other than F. P. Dugan, who was disqualified by the statute. That the appearance of said attorneys was general, and was a waiver of irregularities in the service. That a motion to open up a default and to set aside a judgment should be accompanied with a copy of the verified answer which the party desires' to be permitted to file, so that the court may judge whether there be a meritorious defense, for defaults should not be opened up unless the defendant have a meritorious defense.”

We think the record sustains the court below in the conclusions arrived at as above expressed. The granting or refusing of a motion to set aside a default is a matter within the sound discretion of the court, and unless it clearly appear that such discretion has been abused, the appellate court will not interfere. (Bailey v. Taaffe, 29 Cal. 422 ; Crandall v. Piette, 1 Or. 226 .)

Judgment affirmed.