On lish the defendant's guilt beyond all reason-13 W., B. M., in Nez Perce county, Idaho. able doubt, and to preclude every other rea- Personal service of summons was had on sonable hypothesis, except that of the guilt respondent the 20th of that month, and on of the defendant. We shall not further February 10, 1910, his default for nonappearreview the evidence in this opinion. We ance was entered. The next day judgment have examined it very closely, and are con- was entered against him in favor of appelvinced that it was sufficient to justify the lant, as prayed for in the complaint. jury in returning a verdict of guilty. It is June 2, 1910, respondent filed his motion to true that the evidence is circumstantial, but set aside the default and vacate the judgthose circumstances are very strong, and ment, the hearing was had on affidavits filed would naturally lead a reasonable juror to by the respective parties and the amended the unavoidable conclusion that the defend- answer proffered by respondent, and, on Auant committed the homicide as charged in gust 4th, the judge of the trial court made an the information. order, setting aside the default and judgment, The judgment must be affirmed, and it is and permitting the respondent to come in and so ordered. SULLIVAN, J., and WOODS, District Judge, concur. (19 Idaho, €19) PARSONS v. WRBLE. (Supreme Court of Idaho. March 30, 1911.) (Syllabus by the Court.) 1. JUDGMENT (§ 143*)-DEFAult Judgment SETTING ASIDE-GROUNDS. Under the showing of facts made in this action, the respondent was entitled to have the default set aside, the judgment vacated, and to be allowed to defend. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 269-291; Dec. Dig. § 143.*] 2. JUDGMENT (§ 143*)-DEFAULT JUDGMENT SETTING ASIDE-GROUNDS. The showing of respondent in support of his motion to set aside the default and vacate the judgment, with regard to the circumstances of mistake, inadvertence, surprise, or excusable neglect, specified as grounds for such motion in section 4229, Rev. Codes, is sufficient. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 143.*] defend. taken. From this order, this appeal is There are several assignments of error, but in the argument they were argued, and probably can be considered, together. [1, 2] The first question presented is this: Is the showing of respondent in spport of his motion sufficient to establish the mistake, inadvertence, surprise, or excusable neglect of section 4229, Rev. Codes? [3] It appears from the record that all of the evidence presented to the district court was documentary, and it is argued by appellant, and we think rightfully, that while the vacation of the judgment, or granting of a new trial is a matter in the discretion of the trial court, and that unless there is a manifest abuse of that discretion the order will not be reversed on appeal, still this rule is to be governed by the rule that in such cases (hearing on documentary evidence alone) this court will make an original examination of the evidence as contained in the record and will exercise its judgment and discretion the same as if the case were being presented to 3. APPEAL AND ERROR (§ 1008*)-REVIEW-us in the first instance. EVIDENCE. Where only documentary evidence is before the court below, and it renders its decision upon such evidence alone, this court will make an original examination of the evidence as contained in the record, and will exercise its judgment and discretion, the same as if the case were being presented to it in the first instance. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3965, Dec. Dig. § 1008.*] Appeal from District Court, Nez Perce County; E. C. Steele, Judge. Action by L. F. Parsons against Joe Wrble. There was a default judgment, and, from an order setting it aside and permitting defendant to come in and defend, plaintiff appeals. Affirmed. John O. Bender and D. E. Hodge, for appellant. Clay McNamee and James L. Harn, for respondent. WOODS, District Judge. On January 17, 1910, L. F. Parsons brought his action in the court from which appeal is taken, to quiet title against the respondent to the N. E. 4 of section 26, in township 36 N., range We have carefully examined all of the affidavits presented in the transcript, and have arrived at the conclusion that the court below did not abuse its discretion in setting aside the default and vacating the judgment, provided there was a sufficient showing made to entitle the court to say that the respond ent had a meritorious defense. The affidavits of respondent upon which the order and judgment of the trial court were based show, in substance, that respondent became a naturalized citizen of the United States on July 1, 1901; that he is now of the age of 36; that about 16 years ago he emigrated from Austria; that he is a Slavonian or Bohemian; that he does not speak or readily understand the English language; that he can barely read, and cannot write, the English language; that his occupation has been that of a common laborer; that about 1885 he made application and homestead entry on the N. E. 4 of section 26, township 36 N., range 3 W., B. M., and has at all times since resided upon, cultivated, and improved said land; he made final proof upon the same as a homestead on the 4th him what these papers were for and what day of May, 1903, and on the 1st day of this action was about, and Bender replied, August, 1904, patent and fee to said land "It is a suit for taxes that you have not was issued to him; that between the 1st of paid on your property"; that affiant replied, January, 1904, and the 1st of July, 1904, the "I don't owe any taxes on my property"; that board of county commissioners of Nez Perce said Bender then stated, "If you don't owe county, prior to the issuance of the patent, any taxes on this property, it is all right and attempted to assess and levy against said you can go home; you had better go back tract of land certain taxes for state, county, to the courthouse, and, if the taxes haven't school, and municipal purposes; that said been paid by you, perhaps, or maybe, they proposed and attempted levy of taxes was will let you pay the taxes, but, if you don't illegal and void, for the reason that the title owe any taxes on the land, it will be all right was still in the government of the United for you to go home"; that said Bender in States of America; that thereafter certain making such statements willfully, wrongfully, proceedings were had and done, whereby said knowingly, and fraudulently concealed from taxes so levied and assessed against said affiant the true purpose and intent for which tract of land became delinquent, and there- this suit was brought, and the fact that he after the said county, at a certain sale for was trying to enforce a tax deed based on property delinquent for taxes for the year taxes levied and assessed against said prop1904, became the purchaser thereof, and erty for the year 1904, and so made the statethereafter it attempted to and did sell the ments that he did to allay suspicion existsaid tract of land to one L. F. Parsons on ing in the affiant's mind, and prevent any inthe 17th day of July, 1908; that the pur-vestigation being made by him to ascertain chase of said land from said county for delinquent taxes for the year 1904, on July 11, 1905, and the attempted sale of the same to the said Parsons on July 17, 1908, is and was illegal and absolutely void; that the respondent has been in the open, notorious, and actual possession of said land, cultivating and improving the same, and has continuously paid county, state, school, and municipal taxes thereon, including poll taxes assessed against affiant, for the following amounts: Taxes for 1905. Taxes for 1907. the true status of his property relative to any taxes due against the same; that affiant then went to the assessor's office in the courthouse, where he met Fred W. Wood, the deputy, in said office; that there affiant made substantially this statement to Wood, "God damn! They tell me I no pay my taxes. Do I owe any taxes?" that said Wood, thinking affiant referred to taxes for the year 1909, turned to the records and showed affiant that he had paid and been receipted in full for $50 64 the taxes on his property for the year 1909, 46 03 and said Wood stated to affiant that there 70 57 were no taxes due against his property at 65 12. that time, as shown by the records in the assessor's office, and further stated to the affiant that he could go home, that there was nothing to it, or words to that effect; that That the homestead is now of a reasonable value of $5,000; that about the 19th of January, 1910, a copy of the complaint and summons in this action was delivered to respond-affiant placed full and complete credence in ent by one G. W. Goldner, residing near Lapwai, Idaho; that at that time affiant did not understand or fully comprehend what the action was about or the object of the same, and requested Goldner to read the complaint to him and explain it; that said Goldner attempted to do so, and told affiant that it was a suit concerning taxes which he had not paid to Nez Perce county, and that he had better come to Lewiston and look into the matter; that John O. Bender was attorney for the plaintiff, and that affiant had better come to see Bender about it; that within two days thereafter affiant came to Lewiston and went to the office of the county recorder, showed a copy of the complaint and summons to W. L. Gifford, and asked him what the papers were about; that said Gifford replied that it was apparently a suit brought for taxes which had not been paid, and that John O. Bender was attorney for the plaintiff in the action, and he had better go down and see him about the matter, and perhaps affiant could settle the matter with him; that affiant went to the office of Bender and showed him the copy of the complaint and summons, and asked the statements so made by said Wood, and at that time and up to the 21st of May, 1910. fully believed that there were no outstanding or unpaid taxes against his property of any kind, and believed from the statements so made him by said Wood that said Wood meant that there were no taxes of any kind against said property for any year since the date of the entry and acquisition of said tract of land by affiant; that at the time of said conversation, affiant had no knowledge of his property having been attempted to be sold or having become delinquent for the taxes of the year 1904, and fully believed that there were no taxes whatever due at that time against said property, and so believing returned to his home and paid no further attention to the matter; that on the 21st of May, 1910, by writ of execution, he was by the sheriff of Nez Perce county ousted and ejected from said premises and home, and one John W. Hardin was placed in charge of said premises and every part thereof, and remains in actual possession of the same; that when the execution was served on him affiant did not know why the same was done, or by what authority; that there- | L. F. Parsons; that, from his examination of upon affiant immediately came to Lewiston and employed counsel in this case; that he is entirely unfamiliar with the laws of this state relative to the levy and assessment and collection of taxes; is a foreigner, unfamiliar with the laws of the state of Idaho, uneducated, unable to read and write, or distinctly understand, the English language. W. L. Gifford states that he is acquainted with Joe Wrble; that he remembers his coming into his office in the courthouse, being the office of the county recorder of Nez Perce county, Idaho, and exhibiting to affiant a copy of the complaint and summons in the action wherein L. F. Parsons was plaintiff and Joe Wrble defendant, and that said Wrble at that time asked affiant the whereabouts of said Parsons, and affiant thinks he stated to Wrble that Parsons was either at Moscow, Idaho, or near Weippe, in Nez Perce county, and that John O. Bender was the attorney in the action, and that he had better go and see Bender, and he might possibly be able to settle the matter with Mr. Bender. Fred H. Wood states on oath that about the 21st day of January, 1910, he was deputy assessor and tax collector in Nez Perce county, Idaho, was personally acquainted with Joe Wrble; that about January 21, 1910, said Wrble came into the assessor's office, and in an excited manner said, "God damn: They tell me I no pay my taxes on my land. Do I owe any taxes on my land?" that affiant supposed he had reference to the taxes for the year 1909; that prior to that time the said Joe Wrble had fully paid all of the taxes assessed against him in the assessor's office, and receipt had been issued to him for that year's taxes; that affiant turned to the records of taxes for the year 1909, showed said Wrble that his taxes were paid for that year, and that he had received receipt therefor; that affiant stated to him that, so far as the records in the office showed, there were no taxes owing by him on his homestead land, and for him to never mind what people told him about owing taxes on the land, because he didn't, and for him to go home and pay no further attention to the matter, as everything was all right. Clay McNamee states on oath that he is a resident and practicing attorney in Nez Perce county, Idaho; that he has examined the complaint in this action and all of the records and files therein; that he has examined the records of Nez Perce county touching all matters in regard to the levy and assessment of taxes against the said Joe Wrble for the year 1904 and subsequent thereto, all proceedings had and done by the respective county officers of said county relative to the sale of the real estate belonging to Joe Wrble and delinquent taxes for 1904, and all proceedings leading up to and including the execution and delivery of the tax the records and files in said action and other public records, he fully and honestly believes that the defendant has a complete, full, and meritorious defense to all of the matters and things set forth in the complaint, and has so advised the said Joe Wrble as his attorney. He further states that he is fully convinced that the levy and assessment of taxes for the year 1904 against said property was illegal and void, and all subsequent proceedings leading up to the execution of said tax deed to said Parsons were and are illegal and void. This comprises the showing made by the respondent. The appellant produced the affidavit of John O. Bender, stating, in substance, that affiant is attorney for the plaintiff in both of the cases entitled "L. F. Parsons against Joe Wrble and John Wrble"; that he has read the affidavits of the defendants in each of these cases, and makes this affidavit in denial of some of the facts stated therein. Affiant states that at the time Joe Wrble came into his office in Lewiston, about January 21, 1910, said Wrble had come from the recorder's office, where he had been, making inquiry about these cases; that W. L. Gifford, the recorder, at the request of said Wrble, looked at the delinquent list and tax sales in his office, and found that the property involved in these cases had been sold for taxes for the year 1904 to Nez Perce county, and thereafter a certificate of such sales had been assigned to the plaintiff, Parsons; that said recorder told said Wrble that said land had been sold to Nez Perce county for delinquent taxes for the year 1904, the certificate of such sales had been assigned to the said L. F. Parsons, and told said Wrble where Parsons could be found, either in Moscow or in the Weippe or Musselshell country; also told him that this affiant was the attorney for said Parsons, and where he could find him; that thereupon said Wrble came to the office of affiant and asked affiant what these cases were about; that affiant, in the presence of Bruce Hersey, told said Wrble that these suits were brought against him and his brother, John Wrble, because they failed to pay their taxes four or five years before that time, and that deeds had been issued to L. F. Parsons, who claimed to be the owner of the property on account of said deeds; that affiant was the attorney for said Parsons in said suits, and told Wrble, in the presence of Bruce Hersey, that he had better employ an attorney to appear for him and his brother; that said Wrble said he did not want any attorney; that he had paid all of his taxes; that his brother had paid all of the taxes on their land, and that they had receipts for the payments at home; that thereupon affiant told said Wrble that, if they had paid their taxes and had receipts for such payments, they had better employ an attorney to set up such defense; that affiant told said Wrble at said time that there were 30 other attorneys in Lewiston; that this affiant was against him in this action; that he should go to some other attorney, and not take affiant's word for anything in these suits; that affiant repeatedly told said Wrble at said time to go and get some other attorney in said cases, and set up whatever defense he had in them; that he told said Wrble to get another attorney at least six times in said conversation, and also told him to go to the recorder's office, and he would find out that said property had been sold because he had failed to pay the taxes on it; that thereupon said Wrble left the affiant's office, and did not say whether he was going to the courthouse or to employ an attorney to appear in the case; that it is not true, as stated in the affidavit of said Joe Wrble, that the said Bender then stated, "If you do not owe any taxes on this property, it is all right, and you can go home," but that this affiant did state to said Wrble that, if he did not owe any taxes on his property, he had a good defense in the case, and he had better employ an attorney to set up such defense; that it is not true that this affiant stated, "You had better go back to the courthouse, and, if the taxes have not been paid by you, perhaps, or may be, they will let you pay the taxes, but if you don't owe any taxes on the land, it will be all right for you to go home"; but this affiant did state at said time that said Wrble could find from the recorder's office that the taxes on said land had not been paid, and that he had better go there and look the matter up; that affiant did not know at said time that said Wrble had been to the recorder's office, and that the recorder had told him that the taxes had not been paid, and that the property had been sold. Affiant states that when said Wrble told affiant that he had paid the taxes for each year and had receipts at home for them, said statement by said Wrble was false, and that he knew it to be false. As stated in their affidavits in this case, they paid taxes on the land for the year 1903, and failed to pay the taxes for the year 1904; paid them for the year 1905, and failed to pay for the year 1906, and paid them for the years 1907, 1908, and 1909. Affiant further states that he is the owner of an un divided one-fourth interest in said land, and that the said Parsons conveyed to him such interest; that the said Parsons and this affiant have entered into a contract with one John W. Hardin to sell to him said land at $20 per acre, and that said Hardin has paid a part of said consideration to said Parsons and this affiant; that each tract of said land is not worth $5,000, nor to exceed the sum of $3,500, and that there is a $500 mortgage against the land claimed by Joe Wrble. Affiant states that at the time Joe Wrble had said conversation with Fred Wood, he knew that said land had been sold for taxes, because before that time the recorder had told him about the matter; that affiant had told him to the same effect; that at the time of the conversation with said Wood he had examined the complaint in these actions; that these complaints had been read to him and explained by the constable when they were served upon him, and said Wrble knew that the action could not be brought for taxes for the year 1909, for which year Fred Wood told Wrble his taxes had been paid. Affiant further says that at the time said taxes were levied and assessed against said property, and prior thereto, they had proven up on their homesteads, and final certificates had been issued to them by the United States for said land, and that said land was subject to taxes for the year 1904. Affiant denies that any statements made by him to said Wrble concealed from said Wrble any facts in these cases, or concealed the true purpose and intent for which said suits were brought, or concealed "the fact that he was trying to enforce a tax deed based on taxes levied and assessed against affiant's property," but alleges that he fully and fairly presented all of the facts to the said Joe Wrble in said conversation, and urged him to employ another attorney to appear in said cases and set up whatever defense they might have; that he told him there were 30 other attorneys in Lewiston, and for him to go and employ an attorney, and urged him to go to the courthouse and look the matter up fully, so that he would understand what the case was against him; that the said Joe Wrble understood what the suits were, and understood that his land and the land of his brother had been sold for taxes, and that deeds had been issued to said Parsons by Nez Perce county, and that these suits were brought for the purpose of quieting title on said deeds. Bruce Hersey states under oath that he has read the foregoing affidavit of John O. Bender; knows the contents thereof; that he was stenographer and typewriter in the office of said Bender at the time of said conversation between said Joe Wrble and said Bender; was present and heard said conversation, and knows the facts stated in the affidavit of said John O. Bender pertaining to said conversation are true, and especially and particularly the fact that said Bender urged said Wrble to employ an attorney in said cases and set up whatever defense he had in them, and repeatedly told said Wrble that there were other attorneys he could employ in Lewiston; told him the action was brought to quiet title on tax deeds, because they had failed to pay their taxes on their land four or five years ago, and urged him to go to the courthouse and look the matter up; that the said Joe Wrble stated that he did not want an attorney; that he had paid taxes for every year and had receipts at home for them, and said Bender explained fully to said Wrble where he could find out about the matter in the courthouse; that said Bender did not urge said Wrble to go home without employing an attorney to set up a defense in said suits, but repeatedly urged and insisted that Wrble should employ an attorney in said cases. W. L. Gifford states on oath, in substance, that he is the county recorder of Nez Perce county; that he remembers the time Joe Wrble came into his office and had with him the complaint and summons in these cases, or what he supposed to be such papers; that at that time he looked into the record containing the delinquent taxes and sales of property for delinquent taxes, and found that this land had been sold for taxes for the year 1904 to Nez Perce county, and that certificates of these sales had been assigned to L. F. Parsons, and deeds issued to him for the same; that he told said Wrble at that time that this land had been sold for delinquent taxes for the year 1904, and that Parsons held the deeds for the same, and he supposed these suits were brought on this matter, or words to that effect; that he told the said Wrble that Parsons could be found in Moscow, or in the Weippe or Musselshell country; that John O. Bender was his attorney, and where he could be found. wrought up over the matter; that after leaving the auditor's office, being informed by Mr. Gifford that Mr. Bender was the attorney representing the plaintiff in the action, he went direct to Mr. Bender's office, and there had the conversation heretofore testified to in this affidavit, and after said conversation he went direct to the assessor's office, and, being satisfied as to the conditions found there, and understanding that no taxes were due from him, returned home, as heretofore stated. This is an action to quiet title, and the complaint does not disclose in what manner or by what means the appellant claims to be the owner of the real estate involved in this action. The answer of respondent, which is tendered in addition to the affidavit of Clay McNamee, one of the attorneys for the respondent (which can be treated as an affidavit of meritorious defense), denies that the appellant is now, or ever has been, since on or about the 17th day of July, 1908, or for any other period of time whatever, the owner of all or any part of the N. E. 4 of section 26, township 36 N., range 3 W., B. M., and alleges for an affirmative defense that defendant, on November 25, 1895, made homestead entry in the Lewiston land office for the N. E. 4 of section 26, In reply to this showing, said Joe Wrble township 36 N., range 3 W., B. M., and at made affidavit in substance as follows: That all times since, and up to the 21st of May, he has read the affidavits of John O. Bender 1910, has continuously resided upon, occuand his former stenographer and office clerk, pied, tilled, and cultivated the said tract of Bruce Hersey, in which said Bender swears land as his home and in accordance with that he told this affiant repeatedly, and urged the homestead laws of the United States, him to employ an attorney to represent him and within the time allowed by law for in the cases of L. F. Parsons against him- making final proof on said tract of land, self and L. F. Parsons against John Wrble; and on May 4, 1903, the final certificate was that the same is wholly and absolutely un-issued by said land office to the respondent, true; that said Bender did not once advise and thereafter, on August 1, 1904, patent in affiant to engage or employ any attorney, fee was issued to the respondent by the but, on the contrary, stated to affiant the facts as alleged in his affidavit previously filed in support of the motion to vacate and set aside the judgment heretofore rendered. Affiant again states that he was misled, not only by the statements made to him by said Bender, but as well by his action and manner during the talk that affiant had with him; that when affiant returned to the courthouse, after leaving said Bender, he went directly to the assessor's office and saw Mr. Wood, the deputy in said office, and after what transpired there affiant returned to his home and to his brother, and gave himself no further concern, thinking the matter entirely settled; that he has read the affidavit made in behalf of plaintiff by W. L. Gifford, the auditor of the county, in which said Gifford states that he told affiant that the land had been sold for taxes for the year 1904, and that tax deed was held by L. F. Parsons for the same. Affiant has no recollection of such statement being made to him by said We do not propose to point out wherein, Gifford; that, if made, he misunderstood the in the judgment of this court, some of the same, for at the time of the talk with Mr. affirmative allegations of the answer are United States, and at all times since the 1st day of August, 1904, he has been and now is the owner in fee simple of said tract of land and every part thereof. The respondent further alleges in said answer, assuming that the only claim of appellant in this action would be by tax title, certain specifications as to the way certain taxes were assessed and levied by the board of county commissioners against said tract of land for the year 1904, proceedings by the assessor of Nez Perce county, the auditor of said county, the tax collector of said county, which, it is claimed by the respondent, were unlawful and which rendered any sale for delinquent taxes assessed against said tract of land for the year 1904 invalid, and also alleging that certain steps at and before the execution of the tax deed taken by some of these different county officials were illegal, and that the deed issued to the appellant was void. |