Atwood v. Northern Pacific Railway Co.

McCAETHY, J. — Judgment was entered against appellants by default. They moved to set it aside on the ground that it was taken against them through mistake, inadvertence, 'and excusable neglect. From the order of the trial court denying the motion to set aside the judgment, and also from the judgment itself this appeal is taken. Under C. S., see. 6726, the court may, upon timely application, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, or excusable neglect. This court has held that the mistake, inadvertence or excusable neglect contemplated by the statute is such as might be expected on the part of a reasonably prudent person under the circumstances, and that the statute does not excuse utter indifference and inattention to business. (Kynaston v. Thorpe, 29 Ida. 302, 158 Pac. 790; Valley State Bank v. Post Falls etc. Co., 29 Ida. 587, 161 [557] Pac. 242; Green v. Craney, 32 Ida. 338, 182 Pac. 852; Boise Valley Traction Co. v. Boise City, ante, p. 20, 214 Pac. 3037.) In an unbroken line of decisions this court has held that the question whether mistake, inadvertence or neglect is excusable is addressed in the first instance to the sound discretion of the trial court, and its judgment in the matter will not be reversed except for manifest abuse. (Crane v. City of Harrison, 34 Ida. 167, 200 Pac. 892; Sessions v. Walker, 34 Ida. 362, 201 Pac. 709; Nuestel v. Spokane etc. Ry. Co., 27 Ida. 367, 149 Pac. 462, and cases therein cited.) The taking of a default in this case was caused by the fact that the papers were not sent to the local counsel. This appears to have been due partly to the fact that the proper instructions were not given to one employee, and partly to inattention of others. We cannot see that the district court committed any abuse of discretion in deciding on the showing made that the neglect was not excusable. The amendment of C. S., sec. 6726, made by chap. 235 of the Session Laws of 1921, refers only to a case where judgment is taken through neglect or failure of an attorney. There was no neglect of an attorney in the present case and therefore the amendment has no application. The judgment and order appealed from are affirmed, with costs to x*espondent. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.