Nuestel v. Spokane International Railway Co.

SULLIVAN, C. J. — This action was brought to recover the alleged value of five cows and three calves, alleged to have been killed by the defendant railway company. The original complaint was filed in said action on the 24th day of October, 1913, and the defendant, who is appellant here, demurred to said complaint. Thereafter on December 30, 1913, and before the court had passed upon said demurrer, the plaintiff filed his amended complaint, which amended complaint was served upon the resident attorney for the railroad. On the 31st of that month, the resident attorney’s term of service with the railroad company expired, and on that day he transmitted a copy of the amended complaint to Messrs. Allen & Allen at Spokane, Washington, inclosing a letter therewith calling said attorneys ’ attention to -said' amended complaint and requesting that they attend to the matter as his contract of employment with the railroad company had terminated. No demurrer or answer was filed to said amended complaint and on January 10, 1914, the time for said defendant to plead to said amended complaint having expired and no pleading having been served or filed, the plaintiff applied to the clerk of the district court for a default against the defendant and default was entered on that day. On the 12th of January, 1914, two days after default had been entered, the plaintiff appeared before the district court and offered evidence in support of the damage claimed by him, and the court heard the evidence and thereupon entered judgment in his favor for the amount prayed for in the complaint, with interest. It appears that on the 12th of January, 1914, one of the Spokane attorneys wrote a letter to one of the attorneys for [371] the plaintiff requesting an extension of time to February 1st in which to answer said amended complaint, and in response to that letter the attorney replied that a judgment had been entered in the ease on the 12th of January, which, it seems, was the first intimation the attorneys for appellant had that a default had been entered in said case. It seems that the member of the firm of Allen & Allen who had attended to the railroad company’s business had been quite ill for some time and the matter was overlooked. Some time thereafter an application was made to set aside said default and a hearing noticed for February 7, 1914. The application was based upon affidavits and the records and files. Said motion was presented to the court and taken under advisement by him and thereafter the motion to set aside the default was denied. This appeal is taken from the order denying said motion. The order denying the motion to set aside the default and judgment is based on two grounds: 1. That the answer does not set forth a meritorious defense; and 2. That the application to set aside said default was without any merit whatever. Appellant assigns three errors. The first two relate to the proposition that the trial court could not render judgment at chambers without giving notice to the defendant, even though it was in default. At the time the amended complaint was served and filed, the case was pending on a demurrer to the original complaint. There had been no trial of the issue of law raised by the demurrer, but under the provisions of see. 4228, Rev. Codes, the plaintiff had a right to serve and file an amended complaint, and the defendant was required to answer or demur thereto within ten days after such service and filing. Under the provisions of sec. 4176, when an amended complaint is filed and the defendant fails to plead thereto within the time provided by statute, judgment may be entered by default the same as in other cases. In this case the amended complaint was served on December 30, 1913, and the defendant had ten days, thereafter to [372] plead to said amended complaint. It failed to do so within the time allowed by law, and upon such failure judgment by default might be entered as in other cases. But it is contended that the judge at chambers has no authority to hear testimony and enter judgment in default cases. There is nothing in that contention. Subd. 17 of sec. 3890, Rev, Codes, provides that a district judge has power to enter defaults and to hear testimony thereon and to enter judgment in default cases where there has been no appearance or pleading filed within the time prescribed by statute, and to give the judgment the same force and effect as though entered in open court. This court held in Washington County Land & Dev. Co. v. Weiser Nat. Bank, 26 Ida. 717, 146 Pac. 116, that in case the defendant failed to appear, answer, demur or otherwise plead within the time prescribed by statute, the district judge has jurisdiction and power at chambers to enter a default and to hear testimony thereon and to enter judgment. Where a defendant is in default, it is not necessary to give him notice that the judge is going to proceed and hear testimony in the case at chambers and enter judgment. After a careful examination of the affidavits, records and transcript in this case, we are satisfied that the court did not err in refusing to set aside said default. The application to set aside the default was addressed to the sound, legal discretion of the trial court, and unless it is made to appear that such discretion has been abused, the order made will not be disturbed upon appeal. (Culver v. Mountainhome Electric Co., 17 Ida. 669, 107 Pac. 65; Harr v. Kight, 18 Ida. 53, 108 Pac. 539; Vollmer Clearwater Co. v. Grunewald, 21 Ida. 777, 124 Pac. 278.) The order and judgment appealed from must be affirmed, and it is so ordered, with costs in favor of respondent. Budge and Morgan, JJ., concur.