Pendrey v. Brennan

COWEN, District Judge. The allegations of the complaint involved in this action are that Pendry & Son, the respondents here, entered into an agreement with one W. D. Ream, with whom they were then litigating a claim for a balance claimed to be due on a contract for the installation of a heating plant in the residence of Ream. There being some defects in the installation, the respondents agreed with Ream 'to repair such defects on or before the following 25th day of December, and it was also agreed that the balance claimed to be due upon the contract, $400, should be deposited with one John R. Brennan, appellant herein, to be [56] delivered to respondents at such time as the repairs should be completed by them and approved by Brennan, and it was mutually agreed that the appellant, Brennan, should act as inspector and approve the work if done according to his judgment in accordance with the original contract and in accordance with his instructions, and that when the work should be approved by him the money deposited with him was to be paid over to respondents. And the action between respondents and Ream was compromised in this manner. The complaint further alleges that the respondents completed their specified work and repairs by the 25th day of December and complied in all respects with the terms and conditions of their agreement of settlement, and that at various times since the completion of the work they had demanded their $400 from the appellant, Brennan, but he had refused to pay the same to them. The respondents thereupon commenced their action against the appellant to recover the $400. Summons in the action was served on the appellant on April 27, 1916, and default was applied for and the clerk entered default against the appellant on May 18, 1916, and immediately following entry of default the clerk entered a default judgment against the appellant on the same date. On June 8, 1916, the appellant, by his attorneys, filed a motion to set aside the judgment of May 18th upon the ground, as alleged in their motion, that the defendant was not in default at the time the default was entered; that the clerk of the district court did not have authority or jurisdiction to enter judgment in the case, and that no evidence was taken on behalf of the respondents as to their right to recover judgment. They supported their motion by an affidavit, and upon the hearing of the motion some testimony was taken, from all of which it appears that a demurrer to the complaint was prepared by appellant’s attorneys on May 17th, which was the last day in which their appearance could be entered, and was mailed to the clerk of the court at the county seat, a point some ten miles distant from the place of residence of the attorneys, and at the same time mailed a [57] copy of the demurrer to respondents’ attorneys, who lived at Pocatello, some 100 miles distant. It appears further that the clerk of the court did not receive the demurrer until after he had been directed by counsel for the respondents to enter the default and judgment. The district court denied the motion of the appellant to set aside the judgment and the defendant in the action below appealed. Two questions arise upon the appeal: Did the complaint state a cause of action upon which the clerk of the court could enter judgment under the provisions of subd. 1, sec. 4360, Rev. Codes, and was the defendant in the court below in default at the time the default was entered? We think the action is clearly within the provisions of subd. 1, sec. 4360, which provides that in an action arising upon a contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, default must be entered upon the application of the plaintiff. It is true that the original contract of settlement was between the respondents and the defendant Ream in the first action, but when the appellant Brennan accepted the $400 to be paid to Pendrey & Son, he impliedly agreed with Pendrey & Son to pay the same over when they had performed the terms of their agreement, which they allege they did. The agreement upon which this action is based is the implied agreement of Brennan to turn over the money, and the agreement of settlement between Pendrey & Son on the one side and Ream on the other was a mere incident leading up to Brennan’s agreement with Pendrey & Son. The appellant urges, however, that the complaint fails to state a cause of action because there is no allegation that the work had been inspected and approved by Brennan prior to action brought against him. But as every reasonable intendment must be resolved in favor of the pleading to support the judgment and the objection urged is more in the nature of an ambiguity and uncertainty than a fatal defect, this contention cannot avail to defeat the judgment. (Wyman v. Hooker, 2 Cal. App. 36, 83 Pac. 79.) [58] The second contention of the appellant must also be resolved against him. This contention is to the effect that when his demurrer to the complaint was deposited in the postoffiee on May 17th, the filing was complete within the meaning of the law. If the contention were confined to the service of the demurrer by mail, the contention of the appellant might be conceded, but as we understand it, a different rule applies with reference to the filing of a paper. To file the demurrer it must be deposited with, or placed in the custody of, the proper officer, whose duty it is to place his filing mark upon it, and it is incumbent upon the party filing to see that the paper is so deposited or placed in the custody of such officer before he may claim that it is properly filed. The clerk was clearly acting within his rights and in the performance of his bounden duty when upon May 18th, prior to the receipt of the appellant’s demurrer, he entered the default and judgment upon the application of the respondents’ attorneys. (19 Cyc. 528-530.) It follows, therefore, that the court did not commit error in refusing to set aside the default, and the judgment must be affirmed. It is accordingly so ordered, with costs to respondents. Morgan and Rice, JJ., concur.