Kersten v. Coleman

MB. JUSTICE' HOLLOWAY

delivered the opinion of the court.

In September, 1911, B. F. Kersten became the owner of certain real estate in Missoula county. In June preceding, his predecessor had executed and delivered to C. E. Coleman a mortgage upon the same property, but the mortgage was not placed on record until April, 1912. Kersten sold the property to the W. H. Smead Company, and executed and delivered a deed containing a covenant of warranty against encumbrances (except a mortgage placed thereon by himself). After the transfer to the Smead Company, Kersten commenced this suit to have the Coleman mortgage canceled and satisfied of record. Service of summons was completed on June 6. On June 27 the default of defendant was entered for his failure to appear. On July 11 proof was made and a decree rendered and entered in favor of plaintiff agreeable to the prayer of the complaint. On July 12 counsel for defendant moved to set aside the decree, vacate the default, and permit a 'proposed answer, which was tendered, to be filed. The motion was denied, and defendant appealed from the judgment and from the order.

When one who is in default applies to the court for relief, it [1] is incumbent upon him to show affirmatively that the default resulted from mistake, inadvertence, surprise or excusable neglect, and even when such showing it made, relief may be granted as a matter of grace, but cannot be demanded as a matter of right; in other words, the statute refers the subject to the sound, legal discretion of the trial court. (Rev. Codes, sec. 6589.) The statute has made the very liberal allowance of twenty days after service of summons, within which a defendant may make his appearance in the district court, and the circumstances of any given ease must be most extraordinary to excuse a failure to appear within that time. Generally speaking, it is the policy of the law that every cause shall be determined upon its merits, but this policy does not give countenance to inexcusable negligence, the result of which is to prolong litigation unnecessarily.

*86 In the affidavit supporting the motion to set aside the default, [2] counsel sets forth that service of summons was made on June 6, but that he “believed in good faith that Monday, June 30, was the last day on which the defendant could appear and file a demurrer or answer,” and that on June 30 he was informed that default had already been entered. We are left altogether in the dark, as was the district court, as to the process by which counsel reached the conclusion that twenty days from June 6 included June 30, and no suggestion is offered that the oversight, if such it was, was occasioned by sickness, absence from home, or even a press of other business. Indeed, there is not any excuse offered at all. On the contrary, counsel makes it appear affirmatively that, although he knew of the default on June 30, he did not move to have it set aside until July 12, after formal proof had been made and the decree had been entered. It is elementary in this state that one in default must move to set it aside at the earliest moment practicable. (Bowen v. Webb, 34 Mont. 61 , 85 Pac. 739 ; Swilling v. Cottonwood Land Co., 44 Mont. 339 , 119 Pac. 1102 .) Defendant’s failure to excuse his default, in the first instance, and his delay in applying for relief after notice, fully justified the trial court’s ruling. (Scilley v. Babcock, 39 Mont. 536 , 104 Pac. 677 ; Pearce v. Butte Electric Ry. Co., 40 Mont. 321 , 106 Pac. 563 .)

The appeal from the judgment presents the question: May [3] Kersten, after he' has parted with title to the property, maintain this suit? The land encumbered by the Coleman mortgage is not involved. The subject matter of this litigation is the cancellation of the mortgage, and, though plaintiff has parted with the title to the real estate, his interest in having the record cleared of this encumbrance is sufficient to enable him to prosecute this suit. (30 Cyc. 30.) Section 6115, Bevised Codes, provides: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” Kersten’s warranty deed bound him *87 to bold the Smead company harmless from the operation of this mortgage. He could not compel his grantee to bring this suit, and so long as the mortgage was extant, his liability continued. The Smead company could properly call upon him to clear the title to the land, and unless he can now maintain this suit, his only other recourse is to pay the mortgage which, as to him, is voidable if not void. He alleges in his complaint that at the time he purchased the property he had no notice or knowledge of this outstanding unrecorded mortgage, and if this is true, then such mortgage was and is, as to him, absolutely void. (Rev. Codes, sec. 4684.) In our opinion, section 6115 above was intended to cover such cases as this, as well as analogous ones. The following authorities, though not directly in point, shed light upon the principle involved: 6 Cyc. 319, tit. “Parties”; Gifford v. Workman, 15 Iowa, 34 ; 1 Story’s Equity Jurisprudence, 10th ed., sec. 691.

The decree is not open to objection because' the county clerk [4] is directed to cancel the mortgage of record. The trial court might properly have appointed a commissioner to perform the service, but, if the clerk proceeds, this defendant is not in position to complain that someone else ought to have been selected.

The judgment and order are affirmed.

Affirmed,.

Mk. Chief Justice Brantly and Mr. Justice Sanner concur.