Garner v. Towler

LYMAN, J. This is an appeal from an order setting aside a default and judgment. A demurrer to an amended complaint was argued and submitted on April 19, 1922, and decision reserved for some later date not announced. On Wednesday, April 26th, the court, without notice of its intention, or subsequently conveyed, ordered the demurrer overruled. Upon the following Friday, the clerk of the court, upon application of appellant, entered the default of the appellee, because no answer stood to the complaint, and the time for answer had expired. On the next day there was an order for judgment. On May 4th following, appellee filed a motion, with supporting affidavit, to set aside the default, which was allowed four days later. It appears from the record that the rules of the trial court provide that every Monday is law day, and all law matters then pending are disposed of. The purpose and effect of the rule, among other things, is to obviate the necessity of watching the proceedings of court on other days in order to be informed of the disposition made of pending questions of law. Counsel are, of course, warranted in relying upon that rule, and in presuming that it will at all times be followed, unless informed to the contrary. Attention is called to the fact that the ruling upon appellee’s demurrer, which had been held in reserve, was made on a Wednesday. Appellee could not be expected to be present in court at the time, nor was he required to be on guard against the exigency of a violation by the court or its own rule. He had a right to assume that no action would be taken upon his demurrer before the following day. When default is entered without the fault of the party defaulted, and the cause for the default appears upon the record before the court and made by the court, no showing is required of the party to set [103] aside the default. He needs only to call the court’s attention to the wrong which has been done, and ask that he be relieved. The appellee did all of that, and the court very promptly and properly allowed the motion. The exigencies of court business and the convenience of litigants sometimes make it advisable to dispose of law matters on other days than Mondays; but under such circumstances counsel interested in cases to be affected by the court’s action should be notified in advance of the court’s intention, so that they may be present in court when the ruling is made upon which the rights of their clients depend. Otherwise, the court’s rule becomes a trap to catch the most wary. The order setting aside the default and judgment is affirmed. ROSS, J., and PHELPS, Superior Judge, concur.