Curtis v. Siebrand Bros. Circus Carnival Co. , 68 Idaho 285 ( 1948 )

In view of the dissent on the question of the reversal of the order appealed from, I deem it advisable to set forth my reasons for concurring in such reversal.

At the outset, I concur with Justice HOLDEN in what he has said with reference to the amendment of the complaint and the reduction of the verdict to omit punitive damages. Where a judgment is void in part, and such void portion can he separated from the balance, the void portion will be vacated and the balance permitted to stand. Backman v. Douglas,46 Idaho 671, 677, 270 P. 618.

The remaining question is whether or not there is a sufficient showing of mistake, inadvertence, surprise or excusable neglect within the meaning of Section 5-905 I.C.A. to justify the setting aside of the default and the judgment entered thereon.

The application here was heard on affidavits and the files of the case, and while this court has frequently said that the granting or refusing to grant a motion to vacate a judgment and set aside a default on any of the grounds above mentioned is a matter resting within the sound judicial discretion of the trial judge, it has also consistently held that where the application is made on affidavits and the records and files, and no witnesses are examined before the trial court, 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 for determination in the first instance. See Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7, where this court had before it a consideration of the two foregoing principles, and made the latter one controlling. See also Kynaston v. Thorpe, 29 Idaho 302, 305, 158 P. 790, and Cleek v. Virginia Gold M. M. Co. 63 Idaho 445 at pages 453, 454,122 P.2d 232, for later consideration and approval.

A litigant moving for relief on the ground of mistake, inadvertence, surprise or excusable neglect must show that he has acted in good faith and exercised due diligence in the prosecution and protection of his rights, such as an ordinarily prudent man would exercise under similar conditions. Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7.

In Savage v. Stokes, 54 Idaho 109 at page 116, 28 P.2d 900, this court quoted with approval from Atwood v. Northern Pacific Ry. Co. 37 Idaho 554, 217 P. 600, as follows [28 P.2d 9021: "Under C. S., § 6726, the court may, upon timely application, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, or excusable neglect. This court has held that the 'mistake, inadvertence, or excusable neglect' contemplated by the statuteis such as might be expected on the part of a reasonablyprudent person under the circumstances, and that the statutedoes not excuse utter indifference and inattention tobusiness."

The California courts under the California statute (Section 473, Deering C. C. P.) reading as follows: "The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect", have announced the same rule laid down in the Idaho cases just cited in this language:

"To warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. Freeman on Judgments, 5th Ed. Vol. 1, p. 482; Shearman v. Jorgenson, 106 Cal. 483, 485, 39 P. 863. It is the duty ofevery party desiring to resist an action or to participate in ajudicial proceeding to take timely and adequate steps to retain counsel or to act in hisown person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. Freeman, 483, 5th Ed. Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. All must be governed by the rules in force, universally applied according to the showing made. Gillingham v. Lawrence, 11 Cal.App. 231,232, 104 P. 584. The law frowns upon setting aside default judgments resulting from inexcusable neglect of the complainant. The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as of the excusable variety upon a sufficient showing. Hughes v. Wright, 64 Cal.App.2d 897,149 P.2d 392. * * * Diligence is the watchword and to be on the alert is the constant directive. If judgment be entered against a party in his absence before he can be relieved therefrom he must show that it was the result of a mistake or inadvertence which reasonable care could not have avoided, a surprise which reasonable precaution could not have prevented, or a neglect which reasonable prudence could not have anticipated." (Emphasis added.) Elms v. Elms, 72 Cal.App.2d 508, 164 P.2d 936 at page 939.

"* * * The condition or situation which section 473 of the Code of Civil Procedure seeks to remedy is one in which a party to a cause is unexpectedly placed, to his injury without any fault or negligence of his own which ordinary prudence could not have guarded against. It is not every inadvertence ornegligence that warrants judicial relief, but only suchinadvertence or negligence as may reasonably be characterizedas excusable. * * * While section 473 of the Code of Civil Procedure is remedial, should be liberally construed and applied to the end that one who has a meritorious defense may be given an opportunity to present it, nevertheless, the policy of the courts is to relieve parties from their defaults only when a proper showing its made warranting such relief." (Emphasis added.) Hughes v. Wright, 64 Cal.App.2d 897,149 P.2d 392 at page 395.

Taking respondent's showing at face value, the same is in my opinion insufficient when tested by the principles laid down in the foregoing Idaho and California cases. The question of neglect of an attorney at law is not involved, since no attorney was ever retained. Toplis and Harding, Inc., with its office in Chicago, was and had been for many years respondent's agent in the handling of law suits and claims against him. He turned all such matters over to them. Respondent cannot be excused by leaving the arrangements for the defense of the case in the hands of an agent. The acts of the agent in this case must be imputed to the principal, the respondent.

"A party is ordinarily chargeable with the act or neglect of his agent and should therefore be entitled to relief for the latter's neglect or mistake only where if it were his own, it would be deemed excusable." Freeman on Judgments, 5th Ed., Vol. 1, Sec. 247, p. 494. See also Kynaston v. Thorpe, 29 Idaho 302,305, 158 P. 790.

Summons was served on respondent June 28, 1946, in Bannock County. On June 29 he wired the agent in Chicago, who in turn on July 1st addressed a telegram to L. E. Glennon at Pocatello, requesting the latter to handle the suit and make a report. Mr. Glennon had previously practiced law in Pocatello for many years, and during his practice had acted as attorney in other legal matters sent to him by Toplis and Harding, Inc., as agent for various persons and companies in the defense of litigation arising from claims. Mr. Glennon was appointed to the District Bench on September 15, 1943, and could not have acted as attorney for Toplis and Harding, Inc., after that time. We must assume in the absence of a showing to the contrary that he had handled none of its business for almost three years prior to the time this case arose. The agent did not know that Judge Glennon was on the bench, but assumed without investigation or inquiry that he was still active in practice. There is no showing that this telegram was ever delivered, and from the fact that Judge Glennon answered a December letter hereinafter referred to, it can be assumed that he never received it. The agent had no reply from Judge Glennon, although requesting a report, and made no effort to have the telegram traced or to determine whether it was delivered, but was content to let the matter ride along until August 2, 1946, when it simply mailed a letter to Mr. Glennon at Pocatello quoting the telegram and requesting a report. No reply was received to this letter, and there is no showing it was delivered. Again the agent let the matter drag along, claiming to have sent an occasional letter to Mr. Glennon, but without any word from him in any way, until December 26, 1946, when it again wrote him. This letter was received by Judge Glennon, and he replied on December 31, 1946, stating he had advised Toplis and Harding a long time ago that he was no longer in private law practice, and could not represent them, and that he had examined the court records and found that a default judgment had been entered on August 7, 1946. Upon receipt of this reply, probably January 3, 1947, Toplis and Harding immediately contacted Merrill and Merrill of Pocatello, and retained them on January 4, 1947.

The agent in this case, experienced as it was in the arrangement of the defense of law suits, certainly knew the importance of an appearance in the case. It must have known that it had had no business with Judge Glennon for approximately three years. Under such circumstances, together with the fact that it received no reply to its telegram within a reasonable time after it sent the same, the agent was not justified in assuming that the wire had been delivered, and that the matter was being handled. It did not follow the matter up with such ordinary care and diligence as a man of ordinary prudence usually bestows upon important business matters. Ordinary prudence in a case of this kind requires that a party or his agent make further effort to contact the attorney and confirm his employment in the case.

To uphold vacating the judgment in this case, we must necessarily say it is excusable neglect or inadvertence for a defendant who is personally served with summons to simply wire or write an attorney to appear for him, and then do nothing further than assume his telegram or letter has been delivered and the case is being cared for, even though he never receives a reply thereto. Such a holding by this court would encourage a defendant to rely upon the mail or telegraph for the retention of counsel without doing anything further during the 20 days allowed for an appearance. This is not the attention or diligence that the law contemplates a party to a suit shall give to such an important matter.

The original inattention of the agent to this business is all the more evident when contrasted with the fact that when it learned of the default, approximately four months after entry, it was able to retain counsel in Pocatello from Chicago within 24 hours by use of the telephone.

No case has been called to our attention which is squarely in point on the facts involved here, and as pointed out in the opinion of Justice HOLDEN, each case must rest upon its own particular facts and circumstances, with the burden upon the applicant to bring himself within the statute. It is my opinion that the facts shown by the respondent cannot and do not sufficiently constitute mistake, inadvertence or excusable neglect within the meaning of the statute.

GIVENS, C.J., concurs.