Taylor v. Guaranty Mortgage Co.

GIDEON, J. Appellant (plaintiff below) seeks to have a judgment rendered by the district court of Weber county decreed to be “null and void and that the said plaintiff therein be forever enjoined and restrained from enforcing the same by execu [522] tion or otherwise. ’ ’ Tbe appellant was the defendant in that action, and the respondent Guaranty Mortgage Company was plaintiff. Further relief is sought by the prayer of the complaint to have the respondent Pineock, as sheriff of Weber comity, Utah, restrained from levying upon certain real property under an execution issued in the former action, and that the writ of execution and levy made thereunder be held to be null and void. General relief is also prayed. The defendant Pincock, as sheriff, did not appear in the action, and his default was regularly entered by the clerk of the court. The respondent mortgage company demurred to the complaint. The grounds of demurrer are that the complaint does not state facts sufficient to constitute a cause of action or to entitle appellant to any relief whatever. The court sustained the demurrer. The appellant elected to stand upon his complaint. Judgment was therefore entered dismissing the action.' From that judgment this appeal is prosecuted. The complaint is quite lengthy. We shall state herein only so much thereof as is necessary for a clear understanding of the legal question presented for determination. It is alleged that the mortgage company, in January, 1922, brought an action against the appellant herein as the sole defendant to recover a judgment upon four certain promissory notes alleged to have been executed by appellant, in which the mortgage company was payee; that within the time for pleading to the complaint in that action appellant filed a motion to strike certain parts of the complaint; that the motion was argued on March 6,1922, and by the court granted on the 15th of the same month; that in the order granting the motion the trial court gave the respondent mortgage company, plaintiff therein, 10 days from notice in which to amend its complaint. It is further alleged that neither appellant nor his counsel was present on March 15,1922, when the order was made and that not until the-day of February, 1923, did either the appellant or his counsel have any knowledge or notice that said motion had been disposed of, or that any order had been entered in said action on March 15th; that the [523] mortgage company did not within the 10 days allowed by the court, or at all, serve or file in said cause its amended complaint; that on May 4, 1922, counsel for the mortgage company filed with the clerk of the district court a written praecipe directing such clerk to enter the default of appellant, and default was thereupon entered by the clerk; that on May 9,1922, the mortgage company brought the action on for trial, the appellant not appearing either in person or by counsel; that a trial was had upon the alleged default of the appellant; that the court heard testimony and received certain documentary evidence and ordered judgment in favor of the respondent mortgage company and against the appellant, Taylor, as prayed for- in the complaint; that, on May 20, 1922, the court made and entered, and the same were filed in the case, its findings of fact, conclusions of law, and judgment in favor of the mortgage company and against this appellant ; that thereafter orders were made by the district court authorizing the sheriff of Weber county to sell certain certificates of corporate stock held as security for the indebtedness, and that said certificates were sold and the amount received therefor, less expenses, was credited upon the judgment; that on January 23, 1923, an execution was issued by the clerk of the court and placed in the hands of the sheriff of Weber county, and a levy made upon certain real property and notice of sale given. A detailed description of the property is found in the complaint. It is further alleged that the sheriff will, unless restrained by an order of court, proceed to sell the real property mentioned in the complaint; that the time within which appellant could have appealed from the default judgment had expired, and that the time for asking relief in that action under the statute had likewise expired, and that appellant has no plain, speedy, or adequate remedy at law. No notice of the entry of judgment by default was ever given to appellant. The principal claim or argument of appellant is that the failure of the mortgage company to file an amended complaint as permitted by the order of the court striking certain parts of the complaint and taking default without giving notice of [524] such order was taking an unfair advantage of the appellant. It seems to be the theory of appellant that he was entitled to notice of the court’s order in sustaining his own motion to strike certain parts of the complaint; also that the court was without jurisdiction to enter judgment in that action until the mortgage company had filed an amended complaint. It does not appear from the record before this court that the allegations of the complaint remaining after certain parts were stricken did not state sufficient facts to entitle respondent, plaintiff in that action, to the judgment sought. It must be presumed, in the absence of any showing to the contrary, that the remaining part of the complaint did contain sufficient facts to entitle the court to grant the relief that it did grant. It would be an anomaly to hold that a party litigant is entitled to notice of an order sustaining his own motion. Let it be conceded that it is the law and that it has been so determined by this court in Felt City Townsite Co. v. Felt Inv. Co., 50 Utah, 364, 167 Pac. 835, that a motion respecting the pleadings recognized by law is sufficient to prevent the entry of a default until that motion is disposed of; it does not, however, follow that the time for entering default is extended indefinitely after such motion has been disposed of. Appellant relies upon McMillan v. Forsythe, 47 Utah, 571, 154 Pac. 959, and particularly upon a quotation from Walker v. Heller, 90 Ind. 200, therein found as follows: “It is well settled that a court of equity will restrain proceedings, upon a judgment at law, where its enforcement is against conscience, and the same has been recovered by an unfair advantage.” The weakness of appellant’s argument is not in the rule invoked, but that his complaint does not state facts which bring him within the rule. There is no allegation in the complaint in this action suggesting that it is “against conscience” to enforce the judgment. It may be conceded that a court of equity can and should relieve from a judgment obtained in a law action whenever the enforcement would result in an injustice and the judgment was obtained in any way irregular or against the excusable neglect of the losing party. It [525] is, nevertheless, the universal rule that, before a court of equity will exercise its power in restraining the enforcement of a judgment at law, it must be made to appear that injustice will result if such power is not exercised. That the trial court had jurisdiction to enter the judgment in the original action is not seriously questioned. The court sustained the motion to strike certain parts of the complaint. That was appellant’s own motion. Clearly the mortgage company was not required to give its adversary notice that the court had sustained a motion against it. Appellant knew that a complaint had been filed against him. It was his duty, if he had a defense to that action, to see that such defense was presented to the court by a pleading within the time allowed by law. In any event, if he had a defense, ■such defense should appear from the allegations in the complaint in this action before a court of equity is authorized to grant him relief against a judgment regularly entered. There is no allegation in this complaint of any fact indicating that the appellant has or had a valid or legal defense to the cause of action stated in the original complaint, or any part thereof. Judgment affirmed. WEBER, C. J., and THURMAN, CHERRY, and FRICK, JJ., concur.