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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. On 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.

defend. From this order, this appeal is

taken. SULLIVAN, J., and WOODS, District There are several assignments of error, but Judge, concur.

in the argument they were argued, and probably can be considered, together.

[1, 2] The first question presented is this: (19 Idaho, 619)

Is the showing of respondent in spport of PARSONS v. WRBLE.

his motion sufficient to establish the mistake, (Supreme Court of Idaho. March 30, 1911.) inadvertence, surprise, or excusable neglect

of section 4229, Rey. Codes? (Syllabus by the Court.) 1. JUDGMENT (§ 143*)— DEFAULT JUDGMENT- the evidence presented to the district court

[3] It appears from the record that all of SETTING ASIDE-GROUNDS.

Under the showing of facts made in this was documentary, and it is argued by appelaction, the respondent was entitled to have the lant, and we think rightfully, that while the default set aside, the judgment vacated, and to vacation of the judgment, or granting of a be allowed to defend.

[Ed. Note: --For other cases, see Judgment, new trial is a matter in the discretion of the Cent. Dig. $8 269-291; Dec. Dig. & 143.*] trial court, and that unless there is a mani2. JUDGMENT ($ 143*)-DEFAULT JUDGMENT— fest abuse of that discretion the order will SETTING ASIDE-GROUNDS.

not be reversed on appeal, still this rule is The showing of respondent in support of to be governed by the rule that in such cases his motion to set aside the default and vacate the judgment, with regard to the circumstances (hearing on documentary evidence alone) this of mistake, inadvertence, surprise, or excusable court will make an original examination of neglect, specified as grounds for such motion in the evidence as contained in the record and section 4229, Rev. Codes, is sufficient. [Ed. Note.-For other cases, see Judgment,

will exercise its judgment and discretion the Dec, Dig. § 143.*]

same as if the case were being presented to 3. APPEAL AND ERROR (8 1008*)—REVIEW, us in the first instance. EVIDENCE.

We have carefully examined all of the affiWhere only documentary evidence is before davits presented in the transcript, and have the court below, and it renders its decision upon arrived at the conclusion that the court besuch evidence alone, this court will make an original examination of the evidence as contain- low did not abuse its discretion in setting ed in the record, and will exercise its judgment aside the default and vacating the judgment, and discretion, the same as if the case were be provided there was a sufficient showing made ing presented to it in the first instance.

[Ed. Note. For other cases, see Appeal and to entitle the court to say that the respondError, Cent. Dig. $ 3965; Dec. Dig. $1008.*] ent had a meritorious defense.

The affidavits of respondent upon which Appeal from District Court, Nez Perce the order and judgment of the trial court County; E. C. Steele, Judge.

were based show, in substance, that respondAction by L. F. Parsons against Joe ent became a naturalized citizen of the UnitWrble. There was a default judgment, and, ed States on July 1, 1901; that he is now of from an order setting it aside and permitting the age of 36; that about 16 years ago he defendant to come in and defend, plaintiff emigrated from Austria; that he is a Slavo appeals. Affirmed.

nian or Bohemian; that he does not speak or John 0. Bender and D. E. Hodge, for ap- readily understand the English language; pellant. Clay McNamee and James L. Harn, that he can barely read, and cannot write, for respondent.

the English language; that his occupation

has been that of a common laborer; that WOODS, District Judge. On January 17, about 1885 he made application and home1910, L. F. Parsons brought his action in stead entry on the N. E. 14 of section 26, the court from which appeal is taken, to township 36 N., range 3 W., B. M., and has quiet title against the respondent to the N. at all times since resided upon, cultivated, E. 14 of section 26, in township 36 N., range 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 state thereafter 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 de- the true status of his property relative to linquent taxes for the year 1904, on July 11, any taxes due against the same; that affiant 1905, and the attempted sale of the same to then went to the assessor's office in the courtthe said Parsons on July 17, 1908, is and was house, where he met Fred W. Wood, the depillegal and absolutely void; that the respond- uty, in said office; that there affiant made ent has been in the open, notorious, and actu- substantially this statement to Wood, "God al possession of said land, cultivating and im- damn! They tell me I no pay my taxes. Do proving the same, and has continuously paid I owe any taxes ?” that said Wood, thinking county, state, school, and municipal taxes affiant referred to taxes for the year 1909, thereon, including poll taxes assessed against turned to the records and showed affiant that affiant, for the following amounts:

he had paid and been receipted in full for Taxes for 1905...

$50 64 the taxes on his property for the year 1909, Taxes for 1907.

46 03 and said Wood stated to affiant that there Taxes for 1908.

70 57 Taxes for 1909..

were no taxes due against his property at 65 12.

that time, as shown by the records in the That the homestead is now of a reasonable assessor's office, and further stated to the value of $5,000; that about the 19th of Janu- affiant that he could go home, that there was ary, 1910, a copy of the complaint and sum- nothing to it, or words to that effect; that mons in this action was delivered to respond- affiant placed full and complete credence in ent by one G. W. Goldner, residing near Lap- the statements so made by said Wood, and at wai, Idaho; that at that time affiant did not that time and up to the 21st of May, 1910, understand or fully comprehend what the fully believed that there were no outstanding action was about or the object of the same, or unpaid taxes against his property of any and requested Goldner to read the complaint kind, and believed from the statements so to him and explain it; that said Goldner at- made him by said Wood that said Wood tempted to do so, and told affiant that it was meant that there were no taxes of any kind a suit concerning taxes which he had not paid against said property for any year since the to Nez Perce county, and that he had better date of the entry and acquisition of said tract come to Lewiston and look into the matter; of land by affiant; that at the time of said that John 0. Bender was attorney for the conversation, affiant had no knowledge of plaintiff, and that affiant had better come to his property having been attempted to be see Bender about it; that within two days sold or having become delinquent for the thereafter affiant came to Lewiston and went taxes of the year 1904, and fully believed to the office of the county recorder, showed a that there were no taxes whatever due at copy of the complaint and summons to W. L. that time against said property, and so beGifford, and asked him what the papers were lieving returned to his home and paid no about; that said Gifford replied that it was further attention to the matter; that on the apparently a suit brought for taxes which had 21st of May, 1910, by writ of execution, he not been paid, and that John 0. Bender was was by the sheriff of Nez Perce county ousted attorney for the plaintiff in the action, and and ejected from said premises and home, he had better go down and see him about and one John W. Hardin was placed in the matter, and perhaps affiant could settle charge of said premises and every part there the matter with him; that affiant went to of, and remains in actual possession of the the office of Bender and showed him the copy same; that when the execution was served of the complaint and summons, and asked 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 the records and files in said action and other and employed counsel in this case; that he public records, he fully and honestly believes is entirely unfamiliar with the laws of this that the defendant has a complete, full, and state relative to the levy and assessment and meritorious defense to all of the matters and collection of taxes; is a foreigner, unfamiliar | things set forth in the complaint, and has so with the laws of the state of Idaho, unedu- advised the said Joe Wrble as his attorney. cated, unable to read and write, or distinctly He fu her states that he is fully convinced understand, the English language.

that the levy and assessment of taxes for the W. L. Gifford states that he is acquainted year 1904 against said property was illegal with Joe Wrble; that he remembers his com- and 'void, and all subsequent proceedings ing into his office in the courthouse, being leading up to the execution of said tax deed the office of the county recorder of Nez to said Parsons were and are illegal and Perce county, Idaho, and exhibiting to af- void. fiant a copy of the complaint and summons This comprises the showing made by the in the action wherein L. F. Parsons was respondent. plaintiff and Joe Wrble defendant, and that The appellant produced the affidavit of said Wrble at that time asked affiant the John 0. Bender, stating, in substance, that whereabouts of said Parsons, and affiant affiant is attorney for the plaintiff in both thinks he stated to Wrble that Parsons was of the cases entitled “L. F. Parsons against either at Moscow, Idaho, or near Weippe, in Joe Wrble and John Wrble"; that he bas Nez Perce county, and that John 0. Bender read the affidavits of the defendants in each was the attorney in the action, and that he of these cases, and makes this aflida vit in had better go and see Bender, and he might denial of some of the facts stated therein. possibly be able to settle the matter with Mr. Affiant states that at the time Joe Wrble Bender.

came into his office in Lewiston, about JanFred H. Wood states on oath that about uary 21, 1910, said Wrble had come from the 21st day of January, 1910, he was deputy the recorder's office, where he had been, assessor and tax collector in Nez Perce coun-making inquiry about these cases ; that W. ty, Idaho, was personally acquainted with L. Gifford, the recorder, at the request of Joe Wrble; that about January 21, 1910, said Wrble, looked at the delinquent list and said Wrble came into the assessor's office, tax sales in his office, and found that the and in an excited manner said, "God damn: property involved in these cases had been They tell me I no pay my taxes on my land. sold for taxes for the year 1904 to Nez Perce Do I owe any taxes on my land ?” that af- county, and thereafter a certificate of such fiant supposed he had reference to the taxes sales had been assigned to the plaintiff, Parfor the year 1909; that prior to that time sons; that said recorder told said Wrble the said Joe Wrble had fully paid all of the that said land had been sold to Nez Perce taxes assessed against him in the assessor's county for delinquent taxes for the year office, and receipt had been issued to him for 1904, the certificate of such sales had been that year's taxes; that affiant turned to the assigned to the said L. F. Parsons, and told records of taxes for the year 1909, showed said Wrble where Parsons could be found, said Wrble that his taxes were paid for either in Moscow or in the Weippe or Musthat year, and that he had received receipt selshell country; also told him that this aftherefor; that affiant stated to him that, fiant was the attorney for said Parsons, and so far as the records in the office showed, where he could find him; that thereupon there were no taxes owing by him on his said Wrble came to the office of affiant and homestead land, and for him to never mind asked affiant what these cases were about; what people told him about owing taxes on that affiant, in the presence of Bruce Hersey, the land, because he didn't, and for him to told said Wrble that these suits were brought go home and pay no further attention to the against him and his brother, John Wrble, bematter, as everything was all right.

cause they failed to pay their taxes four or Clay McNamee states on oath that he is a five years before that time, and that deeds resident and practicing attorney in Nez had been issued to L. F. Parsons, who claimPerce county, Idaho; that he has examineded to be the owner of the property on acthe complaint in this action and all of the count of said deeds; that affiant was the atrecords and files therein ; that he has exam- torney for said Parsons in said suits, and ined the records of Nez Perce county touch- told Wrble, in the presence of Bruce Hering all matters in regard to the levy and sey, that he had better employ an attorney assessment of taxes against the said Joe to appear for him and his brother; that said Wrble for the year 1904 and subsequent Wrble said he did not want any attorney ; thereto, all proceedings had and done by the that he had paid all of his taxes; that his respective county officers of said county rel- brother had paid all of the taxes on their ative to the sale of the real estate belonging land, and that they had receipts for the payto Joe Wrble and delinquent taxes for 1904, ments at home; that thereupon affiant told and all proceedings leading up to and in- said Wrble that, if they had paid their taxes cluding the execution and delivery of the tax and had receipts for such payments, they

had better employ an attorney to set up such that said land had been sold for taxes, bedefense; that affiant told said Wrble at said cause before that time the recorder had told time that there were 30 other attorneys in him about the matter; that affiant had told Lewiston; that this affiant was against him him to the same effect; that at the time of in this action; that he should go to some the conversation with said Wood he had exother attorney, and not take affiant's word amined the complaint in these actions; that for anything in these suits; that affiant re- these complaints had been read to him and peatedly told said Wrble at said time to explained by the constable when they were go and get some other attorney in said cases, served upon him, and said Wrble knew that and set up whatever defense he had in them; the action could not be brought for taxes for that he told said Wrble to get another attor- the year 1909, for which year Fred Wood ney at least six times in said conversation, told Wrble his taxes had been paid. and also told him to go to the recorder's of Affiant further says that at the time said fice, and he would find out that said proper- taxes were levied and assessed against said ty bad been sold because he had failed to property, and prior thereto, they had proven pay the taxes on it; that thereupon said up on their homesteads, and final certificates Wrble left the affiant's office, and did not say had been issued to them by the United States whether he was going to the courthouse or for said land, and that said land was subject to employ an attorney to appear in the case; to taxes for the year 1904. Affiant denies that it is not true, as stated in the affidavit that any statements made by him to said of said Joe Wrble, that the said Bender then Wrble concealed from said Wrble any facts stated, “If you do not owe any taxes on this in these cases, or concealed the true purpose property, it is all right, and you can go and intent for which said suits were brought, home," but that this affiant did state to said or concealed "the fact that he was trying to Wrble that, if he did not owe any taxes on enforce a tax deed based on taxes levied and his property, he had a good defense in the assessed against affiant's property," but alcase, and he had better employ an attorney leges that he fully and fairly presented all to set up such defense; that it is not true of the facts to the said Joe Wrble in said that this affiant stated, "You had better go conversation, and urged him to employ anback to the courthouse, and, if the taxes other attorney to appear in said cases and have not been paid by you, perhaps, or may- set up whatever defense they might have; be, they will let you pay the taxes, but if that he told him there were 30 other attoryou don't owe any taxes on the land, it will neys in Lewiston, and for him to go and be all right for you to go home”; but this employ an attorney, and urged him to go to affiant did state at said time that said Wrble the courthouse and look the matter up fully, could find from the recorder's office that the so that he would understand what the case taxes on said land had not been paid, and was against him; that the said Joe Wrble that he had better go there and look the understood what the suits were, and undermatter up; that affiant did not know at said stood that his land and the land of his brothtime that said Wrble had been to the record- er had been sold for taxes, and that deeds er's office, and that the recorder had told had been issued to said Parsons by Nez him that the taxes had not been paid, and Perce county, and that these suits were that the property had been sold.

brought for the purpose of quieting title on Affiant states that when said Wrble told said deeds. affiant that he had paid the taxes for each Bruce Hersey states under oath that he year and had receipts at home for them, has read the foregoing affidavit of John 0. said statement by said Wrble was false, Bender; knows the contents thereof; that and that he knew it to be false. As stated he was stenographer and typewriter in the in their affidavits in this case, they paid office of said Bender at the time of said contaxes on the land for the year 1903, and versation between said Joe Wrble and said failed to pay the taxes for the year 1904; Bender; was present and heard said converpaid them for the year 1905, and failed to sation, and knows the facts stated in the afpay for the year 1906, and paid them for fidavit of said John 0. Bender pertaining to the years 1907, 1908, and 1909. Affiant fur- said conversation are true, and especially ther states that he is the owner of an un. and particularly the fact that said Bender divided one-fourth interest in said land, and urged said Wrble to employ an attorney in that the said Parsons conveyed to him such said cases and set up whatever defense he interest; that the said Parsons and this af- had in them, and repeatedly told said Wrble fiant have entered into a contract with one that there were other attorneys he could John W. Hardin to sell to him said land at employ in Lewiston; told him the action $20 per acre, and that said Hardin has paid was brought to quiet title on tax deeds, bea part of said consideration to said Parsons cause they had failed to pay their taxes on and this affiant; that each tract of said land their land four or five years ago, and urged is not worth $5,000, nor to exceed the sum of him to go to the courthouse and look the $3,500, and that there is a $500 mortgage matter up; that the said Joe Wrble stated against the land claimed by Joe Wrble. Af- that he did not want an attorney; that he fiant states that at the time Joe Wrble had had paid taxes for every year and had resaid conversation with Fred Wood, he knew ceipts at home for them, and said Bender

explained fully to said Wrble where he could wrought up over the matter; that after find out about the matter in the courthouse; leaving the auditor's office, being informel that said Bender did not urge said Wrble to by Mr. Gifford that Mr. Bender was the atgo home without employing an attorney to torney representing the plaintiff in the acset up a defense in said suits, but repeated- tion, he went direct to Mr. Bender's office, ly urged and insisted that Wrble should em- and there had the conversation lieretofore ploy an attorney in said cases.

testified to in this affidavit, and after said W. L. Gifford states on oath, in substance, conversation he went direct to the assessor's that he is the county recorder of Nez Perce office, and, being satisfied as to the condicounty; that he remembers the time Joe tions found there, and understanding that Wrble came into his office and had with him no taxes were due from him, returned home, the complaint and summons in these cases, as heretofore stated. or what he supposed to be such papers; that This is an action to quiet title, and the at that time he looked into the record con- complaint does not disclose in what manner taining the delinquent taxes and sales of or by what means the appellant claims to property for delinquent taxes, and found be the owner of the real estate involved in that this land had been sold for taxes for this action. The answer of respondent, the year 1904 to Nez Perce county, and that which is tendered in addition to the afficertificates of these sales had been assigned davit of Clay McNamee, one of the attorneys to L. F. Parsons, and deeds issued to him for the respondent (which can be treated as for the same; that he told said Wrble at an affidavit of meritorious defense), denies that time that this land had been sold for that the appellant is now, or ever has been, delinquent taxes for the year 1904, and that since on or about the 17th day of July, 1908, Parsons held the deeds for the same, and he or for any other period of time whatever, supposed these suits were brought on this the owner of all or any part of the N. E. matter, or words to that effect; that he told 44 of section 26, township 36 N., range 3 the said Wrble that Parsons could be found W., B. M., and alleges for an affirmative in Moscow, or in the Weippe or Musselshell defense that defendant, on November 25, country; that John 0. Bender was his at- 1895, made homestead entry in the Lewiston torney, and where he could be found.

land office for the N. E. 14 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 0. 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 United States, and at all times since the facts as alleged in his affidavit previously 1st day of August, 1904, he has been and filed in support of the motion to vacate and now is the owner in fee simple of said tract set aside the judgment heretofore rendered. of land and every part thereof. Affiant again states that he was misled, not The respondent further alleges in said anonly by the statements made to him by said swer, assuming that the only claim of apBender, but as well by his action and man- pellant in this action would be by tax title, ner during the talk that affiant had with certain specifications as to the way certain him; that when affiant returned to the court- taxes were assessed and levied by the board house, after leaving said Bender, he went of county commissioners against said tract directly to the assessor's office and saw Mr. of land for the year 1904, proceedings by the Wood, the deputy in said office, and after assessor of Nez Perce county, the auditor what transpired there affiant returned to his of said county, the tax collector of said home and to his brother, and gave himself no county, which, it is claimed by the respondfurther concern, thinking the matter entirely ent, were unlawful and which rendered any settled; that he has read the affidavit made sale for delinquent taxes assessed against in behalf of plaintiff by W. L. Gifford, the said tract of land for the year 1904 invalid, auditor of the county, in which said Gifford and also alleging that certain steps at and states that he told affiant that the land had before the execution of the tax deed taken been sold for taxes for the year 1904, and by some of these different county officials that tax deed was held by L. F. Parsons for were illegal, and that the deed issued to the same. Affiant has no recollection of the appellant was void. 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

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