Lovell v. Willis

MR. CHIEF JUSTICE BRANTLT delivered‘the opinion of the court. Plaintiff brought this action to recover the sum of $178.50, which he alleges to be the reasonable value of services rendered by him as a civil engineer, at the request of the defendant and one J. A. McGowan, now deceased, in investigating and reporting upon the merits of a water-power site on the Missoula river, in Sanders county. The defendant was regularly served with summons and a copy of the complaint on March 4; 1912, but failed to appear and make defense. On March 26 his default was upon application of plaintiff duly and regularly entered, and thereupon, under the authority conferred upon him by the statute (Rev. Codes, see. 6719), the clerk entered judgment for the amount specified in the complaint, with costs. On March 28 the defendant through his counsel served and filed his motion to set aside the default apd vacate the judgment, on the ground that he failed to appear in the action by reason of his mistake, inadvertence and excusable neglect. The motion was [1] accompanied by an affidavit by the defendant in excuse for his inadvertence or negligence, and setting out in detail the facts upon which he would rely for his defense in case he should be allowed to answer. It appears therefrom that at the time he was served with process at Plains, the place of his residence, he was about to take a train for a visit to Helena; that having examined the copy of the complaint sufficiently to inform himself as to the purpose and character of the action, he put it with the copy of the summons into his valise, and that he thereafter forgot all [583] about it, with the result that he did not employ counsel or take any steps to prevent default. He alleges that during the intervening time he Made trips to Helena, Cascade and Missoula; that his attention was so much absorbed by his devotion to important-domestic and business duties, besides matters of public interest, that he did not unpack his valise until after his default had been entered, and that for this reason the fact of the pendency of the action passed entirely out of his mind, until the receipt of a letter from plaintiff’s counsel informing him that judgment had been taken against him. The affidavit does not by a statement of facts disclose the nature of the business in which he was engaged, nor explain what the matters of public interest calling for his attention were. It is a statement of defendant’s own conclusion that they were important and pressing and hence induced his forgetfulness. Upon this showing the court made an order setting aside the default and permitting the defendant to answer. The plaintiff has appealed. We think the court erred in opening the default. Mere [2] forgetfulness is not a sufficient excuse. (Scilley v. Babcock, 39 Mont. 536, 104 Pac. 677.) If the affidavit had made a disclosure of facts showing that the character of defendant’s business was such as to absorb his attention and was so pressing that the average man would, under similar circumstances, have been likely to forget his other important interests, the conclusion of the court thereon might have been justified. As it was, the court accepted the conclusion of the defendant and acted upon it. This it should not have done. The order is reversed. Reversed. Mr. Justice Sanner concurs.