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Opinion of the Court-Budge, J., Dissenting.

In the case of Howe v. Independence Consolidated Gold & Silver Min. Co., 29 Cal. 72, which was an action for the recovery of money, the defendant demurred; the demurrer was overruled and ten days were given to answer. The ten days having expired and no answer having been filed, on application of the plaintiff the clerk entered judgment by default against the defendant. The defendant moved the court to vacate the judgment and to be allowed to answer, and upon the hearing of the motion, in addition to the affidavit of the secretary of the company, an affidavit was filed by counsel, setting forth the following facts: "Affiant states that during the present term he has been very much pressed for time, having to discharge his duties as district attorney besides attending to all his civil business without anyone to aid him

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.. that he has had many things on his mind demanding his attention . . . that this case being set for trial affiant had adopted the erroneous idea that an answer had been filed. . . . . The court vacated the judgment and gave defendant leave to answer, and plaintiff appealed from the order. The judgment of the trial court was affirmed. The appellate court, in the course of its opinion, made the following observation: "Orders of the court below on application made under the 68th section of the Practice Acts will not be disturbed by this court except in cases of gross abuse, where the power of the court has been exercised in a manner which is calculated to defeat rather than advance the ends of justice, which in our judgment has not been done in the present case."

The case of Watson v. San Francisco & Humboldt Bay R. R. Co., 41 Cal. 17, was also an action brought for a balance due for work and labor, where a default was taken for want of an answer, and an application was made by the defendant to open the default, which was allowed by the trial court and from which an appeal was taken. The court in that case, inter alia, held: "Applications of this character are addressed to the discretion-the legal discretion-of the court in which the default has occurred, and should be disposed of by it as substantial justice may seem to require.

Opinion of the Court-Budge, J., Dissenting.

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Each case must be determined upon its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule where application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application."

In the case of Reidy v. Scott, 53 Cal. 69, the case of People v. Rains, 23 Cal. 129, upon which counsel for appellant chiefly relies, is distinguished and modified so as not to be subject to the construction contended for. In the latter case the affidavit of the defendant's attorney was to the effect that he had mistaken the day of service and that he appeared and demurred to the complaint. The court held that when the affidavit shows that the defendant rests on matters appearing on the face of the complaint (by which, of course, is meant matters of defense which, except for the interposition of a demurrer, would be deemed to be waived), the defense is merely of a technical character and the affidavit is insufficient. In the former case the court held that a showing that the defendant made a mistake as to the day he was served with a copy of the complaint and summons; that he was ready with his answer containing allegations of meritorious defense on the day the default was entered; and that upon a full and fair statement of all the facts of the case he is advised by his counsel that he has a good and sufficient defense, entitles the defendant to have the default set aside.

In the case of Francis v. Cox, 33 Cal. 323, it appeared that when the summons was served, the attorney for the defendant directed his clerk to make a memorandum of when the time. for answering would expire. The attorney's clerk failed to make this entry, and owing to this failure the filing of the

Opinion of the Court-Budge, J., Dissenting.

answer was overlooked. Afterward the attorney set up these facts by affidavit and the lower court opened the default judgment; which ruling was sustained.

The above case is similar to the case now under consideration. Matthews, however, made the memorandum himself instead of requesting his clerk to do so. However, he inadvertently calculated the time to be December 7, 1915, when it should have been November 30, 1915, and he sets up these facts in his affidavit, and they are uncontradicted. The lower court found these facts to be true and set aside the default judgment. To the same effect see the case of Lathrop v. O'Brien, 47 Minn. 428, 50 N. W. 530.

In the case of Scott v. Smith, 133 Mo. 618, 34 S. W. 864, in discussing the discretion of trial courts in the exercise of their power to set aside a default judgment, among other things, the court said:

"These motions are addressed to the sound discretion of those courts, to be liberally exercised in furtherance of justice. A wise judge has said, that it is not alone sufficient that justice be administered, but it must be administered in a manner satisfactory to suitors. An indiscriminate interference by this court with matters of pure discretion in the courts below would, in the end, be productive of more injustice than a refusal to interfere in any case. In the review justice might sometimes be done, but in the most of them it would be little more than groping in the dark, in which the court could not satisfy itself whether it was doing right or wrong." (Stout v. Lewis, 11 Mo. 439.)

In the case of Collier v. Fitzpatrick, 22 Mont. 553, 57 Pac. 181, the supreme court of Montana, in discussing the Code of Civil Procedure, sec. 774, which is the same as sec. 4229, Rev. Codes, which provides that the court may in its discretion, in furtherance of justice and upon terms, relieve a party from a judgment taken against him through his excusable neglect, states: "The design and purpose of the statute is to further the administration of justice so that the very right upon the merits may be determined, and to that end to grant relief from excusable neglect in cases where diligence is

Opinion of the Court-Budge, J., Dissenting.

shown in applying promptly for the relief sought, provided the opposite party be not deprived of any advantage to which he may properly be entitled. The defendant should have been afforded upon terms the right of trial."

While it is true that there are certain cases which lay down the rule that the mistake or ignorance of a party's counsel will not relieve him from a judgment rendered against him, a majority of the decisions do not favor this rule, provided it was a mistake of fact and not of law, and provided it was such as might reasonably and genuinely have occurred, and this court has followed the general rule.

In the case of Pittock v. Buck, 15 Ida. 47, 96 Pac. 212, it appeared that counsel for Stella Pittock had appeared in the district court and asked orally for permission to intervene. Her counsel was asked how much time he wanted in which to intervene, and as stated by her counsel, he understood, to the best of his recollection, the court gave him until December 5, 1907. Under these facts the court held that counsel had a right to rely upon his understanding that no further proceedings would be taken in the action until the time fixed for the application to intervene had expired. Judgment had been taken in that case before the time so fixed had expired, as he understood it. This court held that the lower court should have set aside the default judgment and permitted her to answer, and in its decision, among other things, said: "An application to open a default is addressed to the sound. legal discretion of the trial court, and the order of the court will not be reversed on appeal unless it clearly appears that the court abused its discretion, and in determining the question of discretion the power of the court should be freely and liberally exercised under the statute to mold and direct its proceedings so as to dispose of cases upon their substantial merits." (Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Buell v. Emerich, 85 Cal. 116, 24 Pac. 644; Miller v. Carr, 116 Cal. 378, 58 Am. St. 180, 48 Pac. 324.)

In the case of Pease v. County of Kootenai, 7 Ida. 737, 65 Pac. 432, which was an appeal from an order of the district court vacating and setting aside a judgment rendered by

Opinion of the Court-Budge, J., Dissenting.

default from which an appeal was taken, this court in its opinion, among other things, held: "That the trial court is clothed with much discretionary power in cases of the character before us for review is not controverted by counsel for appellants, and it is only where it is plainly apparent from the record that the court has abused this discretion that the appellate court will disturb the action of the lower court.

. . If there is any class of cases in which the trial court should not be hampered in the exercise of its discretion, it is the kind under consideration."

There is another and an additional reason that strongly appeals to me as a reason for sustaining the judgment of the trial court, and that is contained in the affidavit of Robert H. Elder, of the law firm of Elder & Elder, of Coeur d'Alene City, Idaho, which is uncontradicted and is to the effect that he is one of the resident attorneys employed by respondent Coffman; that he was employed immediately subsequent to the service of summons in the action; but that neither he nor any other member of his firm was served with notice that the demurrer would be called up for hearing or that the demurrer had been overruled and time given within which to answer. Under Rule 6 of the Rules of Practice of the District Court of the Eighth Judicial District, the law firm of Elder & Elder should have been notified instead of the law firm of Cullen, Lee & Matthews, of Spokane.

Rule 6 provides that: "Where a demurrer. . . . is overruled and no answer is on file, the answer shall be filed within five days after the service of notice. . . . of the overruling order...

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Section 4892, Rev. Codes, provides, inter alia, that after appearance a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Rule 6 required notice to be given of the overruling of demurrers.

Elder & Elder had appeared for the defendant and their names were signed to the demurrer filed to the complaint within the time allowed by law. They were his attorneys and represented him by reason of their employment, and were

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