Hurle v. Hurle

POLLEY, J. This is an appeal from an order setting aside a judgment entered on default, and allowing defendant to file an answer and defend. Plaintiff and defendant are husband and wife, and the action- is brought by the wife for separate maintenance. The summons and complaint were served on the first day of May, 1918. On May nth, pursuant to an order to show cause, the court issued an order, directing defendants to pay certain sums as expense money, attorney's fees, etc. Defendant was in court in person when this order was made, but he did not employ an attorney, and did not file an answer nor malce any counter showing in response to the order to show cause. Various proceeding's were had in the case, running over a period of several -months. In the meantime defendant paid a few small sums to plaintiff and her counsel. On September 30th defendant sold some property, and from the proceeds thereof plaintiff received $300 in -cash and a note secured by a mortgage on real estate for $7,489. On October 8th plaintiff, without giving defendant notice that she intended to take.judgment, submitted her proof to the trial court, and was awarded judgment by default against the defendant in the sum of $8,175, in addition to the amount she had already received. Defendant was not in the state when this judgment was entered, but immediately upon his return, and learning" of the entry of the judgment, he employed counsel and moved the court to open the default and permit him to file an answer. The motion was granted, and plaintiff appeals. [560] [1, 2] It is the contention of appellant that no excuse whatever was shown by defendant for his negigence in not filing his answer at an earlier date, and that the trial court abused its discretion in granting' the motion. We are not prepared to say upon the showing made by defendant that he was wholly without excuse for his negligence in not interposing (his answer at an earlier date, but it requires more than- an excuse for failure to answer to entitle a party to have a default opened up and be allowed to retry the case. Besides excusing his neglect, he must make a reasonable showing that he would be entitled to a judgment more favorable to himself than the judgment already entered. This defendant failed to do. It is perfectly clear, from the showing' made, that defendant is not dissatisfied with that portion of the decree awarding a separation of plaintiff and defendant, and which awards to the plaintiff the care, custody, and control of four minor children. His only complaint is that the money judgment awarded plaintiff is more than' a fair share of the accumulated property, and that the court should make a reappraisement and redivision of the property. It is claimed by defendant that the award gave the wife more than her fair share of the joint property. With this contention we do not agree. The trial court awarded the wife what, under the showing then made, amounted to one-half of the property. In view) of the facts in this case, such award did not give the wife a fair proportion of the property. Under the valuation placed on the propertjr by defendant’s witnesses in support of his application to open the default, the judgment, if allowed to stand, would give the wife about two-thirds of the property. Under the facts in this case we think she is entitled to that much, and would feel bound to reverse any judgment awarding her a lesser share. There is no law that requires the court to give a husband one-half, or any other specific portion, of their joint accumulation. Each case should be governed by its own circumstances; and, where it appears that the wife is entitled to more than one-half, the court should give it to her. We believé the award made by the trial' court is a fair one, under the circumstances in this case, and that it should not be disturbed. The order appealed from is reversed.