Rieckhoff v. Woodhull

*27 MR. JUSTICE ANDERSON delivered the opinion of the court. Plaintiff has appealed from an order denying his motion to set aside a judgment. This action was brought to foreclose a real estate mortgage securing a note for $2,000. Both note and mortgage were executed in October, 1916, and matured on January 7, 1922. All of the defendants defaulted except the Standard Oil Company. In its answer the bar of the statute of limitations, as to the debt or note, was affirmatively pleaded. After the ease was at issue, the cause was submitted for judgment and decision upon an agreed statement of facts. The essential facts as disclosed thereby are as follows: The defendant W. H. Woodhull, the mortgagor, failed to make any payments on the note after January 7, 1927. An affidavit to extend the life of the mortgage, in compliance with section 8267, Revised Codes, was filed on January 13, 1930. For some time prior to September 15, 1931, Mark L. Lovell was the owner and in possession of the real estate, on which date the Standard Oil Company attached it in an action against Lovell; a judgment was recovered in the attachment action and the property was sold to that company. Thereafter a sheriff’s deed was issued to the purchaser at this sale; no extension agreement of either the note or mortgage was entered into in accordance with the provisions of section 8264. The agreed statement recites that “no payment has been made nor acknowledgment of the said debt, nor any promise to make any payments upon the principal or interest of the promissory note owned and held by the plaintiff secured by the real estate mortgage involved herein has been made subsequent to January 7, 1927, by any of the parties defendant to this action or by any other person or persons whomsoever save and except’’ the affidavit of renewal. *28 The court found that the debt secured by the mortgage was barred and, hence the lien of the mortgage had expired. Judgment was entered for the defendant Standard Oil Company on December 18, 1936. On April 29, 1937, plaintiff filed a motion to vacate and set aside the judgment under the provisions of section 9187, Revised Codes. The motion was supported by affidavits. D. C. Warren, one of plaintiff’s counsel, made affidavit that on January 22, 1936, he received from plaintiff’s attorneys, Keohane & Kuhfeld, of Beach, North Dakota, the note, mortgage, and affidavit of renewal, together with the statement “nothing has been paid on the principal and interest has been paid up to January 7, 1927”; that he prepared the complaint and agreed statement of facts based upon the information so obtained; that he had no information from plaintiff or his attorneys that any other payments had been made on the mortgage indebtedness, or that the indebtedness had been extended by written acknowledgment of the debt by Mark L. Lovell; that because of the lack of information the statement of facts prepared by him was not a true and correct statement of the facts; that it was made through mistake, inadvertence, and excusable neglect of the plaintiff in failing to advise his attorneys of payments made in 1929, and of acknowledgment of the indebtedness made by Lovell in that year; that affiant first learned of the mistake on March 25, 1937, and forthwith took steps to prepare the necessary affidavits in support of the motion to set aside the judgment. Plaintiff made affidavit to the effect that he sent the mortgage to his attorneys at Beach, North Dakota, stating in his letter: ‘1 As requested I am herewith enclosing you the following papers ’ ’ (describing the note), “principal $2,000. Interest on this note has been paid to January 7, 1927. Nothing else paid on account of principal or interest.” Affiant stated that the agreed statement of facts was erroneous, in that it recited that no payment had been made and no acknowledgment of the debt, nor any promise to pay the principal and interest on the note secured by the mortgage subsequent to January 7, 1927. He stated fur *29 ther that he did not see the agreed statement of facts before its execution. He set forth documentary evidence which establishes that this statement is erroneous. The last payment of interest was actually made in 1929 by Lovell, although it only paid up the interest to January 7, 1927. Lovell, by affidavit, corroborated the plaintiff in this respect. Letters signed by him dated as late as December, 1929, wherein he acknowledges the indebtedness, were produced. The question before us is whether the court was in error in denying plaintiff’s motion. The pertinent part of section 9187 here applicable reads as follows: “The court may, in furtherance of justice, * * e upon such terms as may be just, relieve a party * * * from a judgment, * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect,’’ provided the application be made within a reasonable time and in no case exceeding six months. The application here was within time. An application to set aside a judgment on motion is addressed to the discretion of the trial court, and its action thereon, in the absence of manifest abuse of discretion, will not be disturbed on appeal. (Hegaas v. Hegaas, 28 Mont. 266, 72 Pac. 656; Robinson v. Petersen, 63 Mont. 247, 206 Pac. 1092; Kosonen v. Waara, 87 Mont. 24, 285 Pac. 668.) Each application to set aside a judgment must be determined by its own facts. (Robinson v. Petersen, supra; Pacific Acceptance Corp. v. McCue, 71 Mont. 99, 228 Pac. 761.) Hence the question is fairly presented: Did the plaintiff establish that by his mistake, excusable neglect, or inadvertence this judgment was taken against him! It is said that the showing made establishes a mistake, in that plaintiff believed so long as the mortgage was not barred by the statute of limitations (sec. 8267), due to the filing of the renewal affidavit, the debt which it secured was not barred by the general statute. Plaintiff was in error in this assumption, for a mortgage cannot exist beyond the life of the debt or obligation it is given to secure. (Jones v. Hall, 90 Mont. 69, 300 Pac. 232; Humbird v. Arnet, 99 Mont. 499, 44 Pac. (2d) 756.) *30 This was a mistake on the part of plaintiff as to what the law was in this state on this subject. It is said that section 9187 does not attempt to limit its provisions to any particular classes or kinds of mistake. Hence without regard to whether mistakes of fact or law are involved, relief may be granted. California has announced and followed a rule in accord with this contention, as is illustrated by the case of Douglass v. Todd, 96 Cal. 655, 658, 31 Pac. 623, 31 Am. St. Rep. 247. This court has long been committed to the rule that, under section 9187, relief may not be granted, speaking generally, where the mistake is one of law. (Mantle v. Casey, 31 Mont. 408, 78 Pac. 591; Donlan v. Thompson Falls Copper & Milling Co., 42 Mont. 257, 112 Pac. 445; Canning v. Fried, 48 Mont. 560, 139 Pac. 448; Federal Land Bank v. Gallatin County, 84 Mont. 98, 274 Pac. 288; Meyer v. Lemley, 86 Mont. 83, 282 Pac. 268.) ' The foundation of the rule that relief will not be accorded where the mistake is one of law is the common-law maxim that ignorance of the law excuses no one. This rule is one of necessity, for if ignorance of the law be permitted to be pleaded, then there could be no security in legal rights, no certainty in judicial investigations, and no finality in litigations. (2 Pomeroy’s Equity Jurisprudence, 4th ed., sec. 842, p. 1716.) The rulings of this court announced in the foregoing cases have not been changed by legislative action, although many sessions of the legislature have been held since the earlier of these cases were decided. The fact that these decisions have stood so long would, perhaps, be a sufficient reason for not disturbing them. But when we consider certain other sections of our Code, we think they are in entire accord with the express legislative will. Section 8776 declares: “Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.” The word “mis *31 take” is found elsewhere in our Codes. “An apparent consent is not real or free when obtained through ® * * mistake.” (Sec. 7475.) “Mistakes may be either of fact or law.” (Sec. 7484.) Mistakes of fact are defined by section 7485. Section 7486 declares that certain enumerated mistakes of law are mistakes within the meaning of the chapter in which these sections are found. The word “chapter” can only there apply to the word “mistake” as used in section 7475. Section 7487 provides that mistakes of foreign law are mistakes of fact. The effect of sections 7484, 7485, 7486, and 7487 is to limit the meaning of the word “mistake,” as used in section 7475, to the provisions of these sections. In other words, these sections define the meaning of the word “mistake.” The legislature in adopting these Codes had defined and limited the meaning of the word “mistake” so that, aside from the few exceptions mentioned in these sections, it excluded mistakes of law from its definition. When we come to determine the meaning of the word “mistake” found in section 9187, the legislature having once defined the word under the rule of section 8776, no contrary intention appearing, the word “mistake” in section 9187 must be held to have the same meaning as it has when used in section 7475. It is well to here observe that the California Codes contain no section corresponding to section 8776, and hence the courts there might well construe the statute as they did, but by reason of this section we are precluded from following their decisions. It is argued that, since plaintiff was a resident of Iowa, his mistake as to the state of our law was one of fact, applying the rule of section 7487. Before the commencement of this action, plaintiff employed counsel in Montana, who have represented him throughout all the various proceedings. In this state of the record, this principle can have no application. (10 R. C. L. 316; Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623; note in 55 Am. St. Rep. 50.) It is clear from a reading of the agreed statement of facts that plaintiff’s counsel-here submitted for decision the question *32 of the effect of the affidavit of renewal, taking the position that the mortgage was thereby vitalized for a statutory period without regard to the vitality of the debt secured by the mortgage. As we have demonstrated, to assume this position was to rely upon a mistaken notion of the law. It is said that the attorneys were without, at least, implied authority to stipulate as they did, namely, to ignore the facts which would establish plaintiff’s right to recover, and accordingly it is argued that the relief should be granted. Section 8974 provides: “An attorney and counselor has authority: 1. To bind his client in any steps of an action or proceeding by his agreement filed with the clerk or entered upon the minutes of the court and not otherwise. ’ ’ The agreed statement of facts was in writing. It was filed with the clerk of the court. This is one of the methods provided for the trial of causes. (See. 9372.) No one can well argue that the signing and filing of the agreed statement of facts is not the taking of one or more steps in an action or proceeding. Under this section, the attorneys had implied authority to do what they did. However, independent of this statute, the contention cannot prevail. No one has attempted to state the scope of the express authority of the counsel for plaintiff. The presumption obtains, in the absence of a showing to the contrary, that the attorneys were acting within the scope of their authority in entering into this stipulation. (Davenport v. Davenport, 69 Mont. 405, 222 Pac. 422; 5 Am. Jur. 307; see, also, Union Bank & Trust Co. v. Penwell, 99 Mont. 255, 42 Pac. (2d) 457.) It is argued that counsel neglected, upon the issue of the statute of limitations being pleaded, to make inquiry as to when the last payment of interest, and as to whether a new promise of payment, had been made. Assuming that this situation establishes neglect on the part of the attorneys, the record fails to show any excuse therefor. The neglect of his attorneys was the neglect of the plaintiff, and, unless excused, no relief may be granted under this section. (First State Bank v. Larsen, 72 Mont. 400, 233 Pac. 960.) *33 Accordingly, we are unable to say that the trial court abused its discretion in refusing to set aside the judgment. Order affirmed. Me. Justice Moréis and Honorable A. J. Horsky, District Judge, sitting in place of Mr. Justice Stewart, disqualified, concur.