Harper v. Mallory

By the Court, Whitman, J. This is an appeal on the part of defendant from an order of the District Court of the Second Judicial District, overruling his demurrer; from the judgment entered against him, and from the order of the Court denying his motion to vacate and set aside his default and judgment thereon. No point has been presented on the first two grounds of appeal. The demurrer was properly overruled. It was upon its face for delay, and the District Court, upon overruling it, would have been justified in requiring immediate answer. The judgment was regularly taken, nothing to the contrary being shown. In support of the motion it appeared that complaint was filed March 5th, 1868, summons served on the 19th, and demurrer filed on the 24th of the same month; overruled May 4th, 1868 ; five days given to answer. Default and judgment entered May 11th. On that day defendant showed by affidavit to the Court that in [449] March, after service of summons, he employed an attorney in the case, who filed a demurrer, and advised him “ that the same was good, and would be sustained by the Court, and that ample time could and would be granted to answer.” That immediately thereafter, and before he had time to consult his attorney touching his defense, he was called away from Douglas County, his place of residence and the place of trial, to Storey County, where he was unavoidably detained until the evening of May 10th, when he first discovered that the demurrer had been overruled. That on the morning of the 11th, coming to prepare and file his answer, he learned that default and judgment had been entered against him ; that a meritorious defense exists to the action, presented in the form of an answer, and made part of his affidavit. The attorney added that during the week ensuing the overruling of the demurrer he made “ repeated efforts to see and advise ivith his client, but to no purpose, and that until about seven and a half o’clock p.m. Saturday, May 9th, he had every reason to believe the time to answer would be extended by stipulation.” This showing presents a case of inexcusable negligence, which does not come within the rule of Howe v. Coldren, administrator, etc., (ante, p. 171.) In that case the Court decided that no such extraordinary circumstances appeared as would warrant its interposition, reversing the order of the District Court setting aside a default. In the decision we concur, but we do not endorse many dicta of the opinion upon the subject of default, which are not applicable to the facts of the case, and which, therefore, can constitute no portion of the decision. It- is upon these, and not on the decision, this Court would act should it reverse this ease. If the default herein should be set aside, it would be difficult to imagine a case where one should stand. The order of the District Court is affirmed.