Smith v. McCormick

*326 On Motion nor Rehearing.

(•Submitted May 22, 1916. Decided June 3, 1916.)

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

Defendant has moved for a rehearing, and, directing our attention to the fact that the order from which the appeal was taken was dual in character in that it vacated the judgment and set aside the default, insists that we disposed of it only so far as it affected the default, leaving undetermined the question of the validity of the order vacating the judgment. In this defendant is mistaken. While the order of the district court had a dual purpose, it was one order only, and that order we reversed in its entirety.

The motion made in the lower court had the like dual [2] character and was supported by an affidavit, but without any answer tendered. We confined our attention to the order as affecting the default because the affidavit is confined exclusively to that subject—to an attempt to excuse appellant’s failure to appear in the action by answer or other pleading. The order, in so far as it set aside the judgment, is so palpably indefensible that we deemed it unnecessary to make special reference to it. Assuming that the motion for that purpose was in time, the court-was without authority to act except upon a proper showing: (1) That the judgment was taken against appellant through his mistake, inadvertence, surprise or excusable neglect; (2) that the judgment, if permitted to stand, will affect him injuriously; and (3) that he has a defense upon the merits. The facts constituting the defense may appear from the affidavit or proposed answer, where one is tendered. These rules have been reiterated so often by this court that a citation of the authorities is unnecessary.

The affidavit does not apprise the court when defendant first' learned that a judgment was about to be, or had been, taken against him. For aught that appears from this affidavit, defendant or his counsel may have been in court during the time the *327 trial was in progress. There is not the faintest suggestion that the judgment itself was taken through defendant’s inadvertence, mistake or excusable neglect. Neither is there a suggestion in the affidavit that the amount of the judgment exceeds the fair value of the property destroyed. Finally, there are not any facts stated which constitute a defense. In his affidavit defendant does say that in destroying plaintiff’s property he acted in his capacity as chief of the Helena fire department and deputy state fire marshal, and not otherwise, and that the state fire marshal had condemned the buildings “as being dangerous to life and property of the inhabitants of the city of Helena,” and these are the only facts proffered as a defense.

There are certain circumstances under which the city of [3] Helena, acting through the chief of its fire department and within its police power, may destroy private property for the public welfare; but the police power acts only in emergencies, and the facts constituting the emergency must be made to appear before the invasion of private rights can be justified. The chief of a fire department merely by virtue of his office has no more right to destroy private property than has anyone else, and to constitute a defense for his act when be does so, he must disclose the facts which constitute the emergency under which the exercise of the police power will justify such extreme measure. It is not any defense to say that the state fire marshal has condemned plaintiff’s buildings; for unless the facts surrounding the property were such as to properly invoke the police power, the act of the firé marshal would not protect him or anyone acting upon his authority.

We have elaborated our views thus far to demonstrate that the affidavit was altogether insufficient to move the trial court’s discretion to vacate the judgment.

The motion for rehearing is denied.

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