Kivett v. Crouch

MORGAN, J. This is an appeal from a judgment by default and from an order overruling a motion to vacate and set aside the default, the judgment and the writ of execution issued thereon, and to permit defendant to answer the complaint. The question presented is: Did the district judge commit a breach of judicial discretion in overruling the motion? The jurisdiction of the court to enter the judgment has not been questioned on this appeal. The record shows the summons was served on appellant in Grant County, Oregon, August 9, 1939. The undisputed affidavit of Stewart S. Maxey, one of appellant’s attorneys in the district court, filed in support of the motion to vacate, contains the following: “That after said service, this affiant, accompanied by associate counsel, Laurence N. Smith, made a careful examination of the records and files of this court in relation, to this case and in particular the clerk’s register of actions. That affiant and his associate were unable to find any affidavit on behalf of plaintiff or any order of this court for constructive service herein and so notified their client, the said defendant, Claude Crouch. “Deeming said constructive service void as shown by the only records of this court relating to this suit and that plaintiff intended to try the controversy between the parties in the Oregon court in which plaintiff had first filed suit, both plaintiff and defendant being residents of the State of Oregon, affiant and his associate did not join issue in the Idaho case. *539 “That affiant and his associate counsel repeatedly thereafter and not less than two or three times per week, searched said records and files to determine whether or not further proceedings had been taken or entries made or documents filed therein, but none were found. “After plaintiff had entered default, taken judgment and caused a writ of execution to issue, affiant and his associate appeared specially on September 25th, 1939, by motion to vacate the same, as shown by the files herein. They first learned to their surprise on the 26th day of September, 1939, that an order for constructive service based on an affidavit had been duly made by the clerk of this court preceding service on defendant outside the state but that the clerk of this court or one of his deputies, by neglect or mistake had failed to make docket entries thereof or to file said order and affidavit in the files of this case and had in fact, filed said papers in another unrelated case, where he and his deputies were themselves unable to locate said documents until after an arduous search of all the court’s records made at the request of the presiding judge of this court..... “WHEREFORE, Plaintiff prays that the court, taking account of the surprise of defendant, misled by the mistake of the clerk of this court, in the interest of equity and justice, vacate the default heretofore entered against defendant, vacate the judgment entered therein, vacate, quash or stay the writ of execution heretofore issued, and permit the defendant to appear herein and file his answer herewith tendered, so that said cause may be tried and determined on its merits. ’ ’ The motion was accompanied by a proposed answer showing appellant had a good defense to respondent’s cause of action for $1,696.45 save and except her claim for $233.40 thereof. The record shows respondent filed a complaint in the Circuit Court in Oregon on the cause of action stated in the complaint thereafter filed by her in this case. Appellant answered in the Oregon case and it was pending on complaint and answer when the default and judgment were entered in this ease. *540 Upon the filing of the complaint herein counsel for respondent made and caused to be filed an affidavit in support of an ex parte application for an order authorizing the service of summons on appellant outside the state. The order was made By a deputy clerk of the district court, who, by mistake, and without fault of appellant or his attorneys,- filed the affidavit and order in another case than this, and entered them in the register of actions as having been filed in the other case. Because of this mistake of the deputy clerk the searches and examinations of the record, as above set out, made by counsel for appellant, failed to disclose the existence of the affidavit or order, or that they had been made or filed. I. C. A., section 5-905 contains the following: 1 ‘ The court may, .... relieve a party, or his legal representative, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; .... Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect or failure of any attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, .... shall, .... set aside such judgment, order or proceeding and may, in its discretion, require the attorney guilty of such failure or neglect to pay the costs or expenses actually and necessarily occasioned to the opposite party by such failure or neglect, and may, in its discretion, also impose upon such attorney a penalty of not exceeding $100.00.” The condition of the record, prior to and at the time the default judgment was entered, justified counsel for appellant in their opinion that the service of the summons was void because of lack of affidavit and order for service outside the state, which had been made and so improperly filed that they could' not be found by an examination of the records and files of the action. It has been suggested that if appellant desired to take advantage of any defect in the order, or failure to make an order, he might have moved to quash the service which motion would have extended his time for answer until the motion was disposed of. It is true, he might have moved to quash *541 the service, but, in the light of what was discovered when he moved to set aside the judgment, his motion to quash the service would have been overruled, properly, because service of the summons had been made correctly. In view of the state of the record, as it existed prior to and at the time the default judgment was entered, there was no more reason for counsel to move to quash the service of the summons than there was for him to demur to the complaint or answer it. Either course would have prevented the entry of default and judgment. The part of section 5-905 which relates to the neglect or failure of an attorney to file or serve a paper within the time limited therefor, and which provides for penalizing the attorney for negligence, has no application to the facts of this case. There is no evidence of negligence on the part of appellant’s attorneys. The condition of the record justified them in pursuing the course they followed. It appeared from the face of the record, on very careful investigation and scrutiny made, that service of the summons on their client was void and if judgment by default be taken against him it would be set aside on motion. There was nothing to arouse suspicion that an affidavit and order for substituted service had been filed. The record appeared to show, conclusively, to the contrary. Counsel for appellant had a right to rely on the record of the court made in this case wherein their client was a litigant. Without fault on their part, they were misled by the record into permitting a default judgment to be taken against him and they made a timely motion to vacate the judgment and default, supported by an adequate showing of facts constituting the reason for the default, and that their client had a good and meritorious defense to the action. It was an abuse of judicial discretion to deny it. The judgment and order appealed from are reversed. Costs are awarded to appellant, Budge, Givens and Holden, JJ., concur.