Opinion
No. 2797
February 11, 1958
Appeal from the District Court of Fremont County, Wyoming, the Honorable Franklin B. Sheldon, Judge.
Affirmed.
For the defendant and appellant, the cause was submitted upon the brief of Spence and Hill of Riverton, Wyoming, and oral argument by Albert W. Dilling of Chicago, Illinois and G.L. Spence.
For the plaintiff and respondent, the cause was submitted upon the brief of Smith and Nicholas of Lander, Wyoming, and oral argument by W.A. Smith.
Heard before Blume, C.J., and Harnsberger and Parker, J.J.
It is so fundamental as not to require citation of any authorities that a default cannot be entered against a party that has not received proper notice. That appellant and its counsel, received no notice of hearings set in this cause after the names of its counsel had been deleted from the list of attorneys for the parties to this cause stands unrefuted in this cause. The court abused its discretion when it entered a default judgment herein against appellant. The motion to vacate the default judgment in this cause was filed promptly after its entry was discovered by appellant and its counsel and during the same term of court in which the judgment was rendered. Except for those matters of which the court may take judicial notice, the deliberations of the trial judge are limited to the record made before him, and the determinative facts on which the rights of the party must be made to rest must be found from admissions made by parties, facts agreed on, stipulations entered into and noted at the hearing, and evidence offered in open court after all parties have been given full opportunity to be heard. Recourse may not be had to records, files, evidence, or data not thus presented to the court for consideration. 89 C.J.S. 351. Under the tendency of the courts to require causes of action to be tried upon the merits, judgments by default are regarded as peculiarly within the rule conferring authority on courts to open, correct, or vacate their own judgments. 31 A.J. 265. The trial court in the exercise of a sound discretion and on its own motion or motion of an interested party could set aside, amend, correct, open or vacate its orders and judgments during the term at which they were made. Puterman v. Puterman, 66 Wyo. 89, 205 P.2d 815.
POINTS OF COUNSEL FOR RESPONDENT.It is fundamental that courts favor trials on the merits. It is also essential to justice, and to the administration of law through the courts, and well established that courts favor settlement of controversies between litigants. In this case the only active litigants, The Rim Group and Mountain Mesa Uranium Corporation, have settled the matters between them. Appellant itself demonstrated and readily admits it has no knowledge of the facts constituting the merits of this lawsuit and that the same could only be tried on a proposition supposing that Mountain Mesa had a substantial defense to the action and supposing that appellant might somehow obtain the evidence from Mountain Mesa to present the defense. In any event, appellant clearly established that if it had any right, it was the same right as that of Mountain Mesa, and respondent submits that the trial court properly assessed that right in its opinion. Respondent argues that the cases cited by appellant are not in point with appellants case nor authority for appellant's position. There was no surprise, or mistake, or excusable neglect on the part of appellant or its counsel; no excusable inadvertence or honest misunderstanding reasonably relied upon whereby any party charged with a duty was misled. Nor is there any showing of diligence on the part of appellant or its counsel. Neither was there even a substantial effort to demonstrate to the court any meritorious defense, nor any showing that if the judgment were allowed to stand that an injustice would be done. In this case the courtesy requiring that counsel for one party should before taking a default, give notice to counsel for the other side of his intention to do so was in fact extended; appellant didn't tender to the court any defense to the issues but disclaimed any knowledge of any defense; in effect appellant argued to the court that it hopes Mountain Mesa has a better defense than it had to the Bergsten case, and that if appellant can just reverse the United States District Court in each of two other cases and prevail upon the Wyoming courts to deny respondent any exploration and development of respondent's property until appellant can succeed in all its Federal Court litigation after appellant wins its Federal Court litigation, it plans to try to find out from Mountain Mesa what the facts are and then it will see what it can do about offering a meritorious defense. Certainly no injustice has been done to any rights of appellant. Appellant shows its only claim was exactly that which Mountain Mesa asserted. It is intrinsic of the settlement that Mountain Mesa has received and preserved all that is due that claim, possibly more when one considers that Mountain Mesa had lost the Bergsten case, and that with the guaranteed uranium market expiring in 1962 The Rim Group could not afford to permit another year or more to elapse while the case was on appeal before any substantial exploratory work was undertaken. In determining a Motion to Vacate Judgment, the court is obliged to exercise its sound legal discretion. That discretion cannot be properly exercised except upon the truth and upon the facts and circumstances about the case. Appellant does not assert that the remarks of the Judge wherein he stated Mr. Spence personally advised him he had no intention of appearing at the trial on behalf of appellant are not the truth, but only that it is improper for the Judge to consider what he knows is the truth. In the Lake v. Lake, 63 Wyo. 375 and Spriggs v. Goodrich, 74 Wyo. 185, cases this court stated and re-announced that in every case it should extend its inquiry to determine from the facts shown whether in the interest of justice and right it should disturb an order which has the effect of preventing a determination on the merits. By reason of the very nature of these type cases, quite often the only source of the facts necessary to be shown to accomplish substantial justice must come from the Judge himself. In this type case we are not bringing purely civil facts before the judiciary for adjudication; we are asking the judiciary to re-assess the justice resulting from its own acts, based on facts born of its own composure. And for the trial judge to be prohibited from relating and considering facts occurring in the performance of his own office when later called upon to further discharge his office in regard to those facts might often result in the most extreme injustice.
Appeal from the District Court of Fremont County, Wyoming, the Honorable Franklin B. Sheldon, Judge.
Petition for rehearing denied.
In support of the petition, there was a brief by Albert W. Dilling of Chicago, Ill.
OPINION
This is an appeal from a denial of a motion to vacate a default judgment against appellant, Riverton Uranium Corporation, one of several defendants in a suit to quiet title to certain mining claims. It is urged that the motion should have been granted because appellant (a) had no notice of the time set for trial and (b) had a meritorious defense to the action.
Assuming, without deciding, that the setting of the case was required to be made by a formal order, we find that the record shows, and it is conceded, that the court on November 9, 1956, signed and entered an order setting the case for hearing on December 6, 1956; but appellant denies having received a copy of the order and further urges that the default was taken on December 7 and not on December 6, the day set for the hearing. Reliance is placed upon the provisions of § 3-211, W.C.S. 1945, which statute requires the clerk of a district court to send copies of all orders to parties in all contested cases. Appellant's attorney testified that he did not receive a copy of the order and assumes that the clerk failed to comply with this statute. At the hearing on the motion the trial court asked appellant's attorney, "Will you put the Clerk on the stand and find out whether or not he sent you a copy of that [the November 9 order]?" Counsel responded, "Yes, I will in due course of this proceeding." Unfortunately, he failed to do so.
The law is well settled that in the absence of a showing to the contrary a public officer is presumed to have performed a duty imposed upon him by law. See 43 Am.Jur., Public Officers § 511; 20 Am.Jur., Evidence § 171; 31 C.J.S., Evidence § 146; Laramie Irrigation Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235; and Merryman v. School Dist. No. 16, 43 Wyo. 376, 5 P.2d 267, 86 A.L.R. 1181. Applying this rule to the officer here concerned, we find that "It will be presumed, in the absence of any showing to the contrary, that a clerk [of court] has performed a duty imposed on him by law." 14 C.J.S., Clerks of Courts § 46. Appellant must then be taken to have received the order setting the case for hearing on December 6, 1956. This is in accordance with the general rule of law on the subject, and in this instance we think no inequity results since appellant failed to comply with the court's request to clarify the matter.
We turn then to the fact that the case having been set for December 6 was passed on that day and the default taken on December 7. Under our previous rulings, a litigant is required at his peril to be familiar with and adhere to the schedule of the court in the trial of cases. In Spriggs v. Goodrich, 74 Wyo. 185, 285 P.2d 1103, 1109, 289 P.2d 648, we quoted with approval the case of Boulter v. Cook, 32 Wyo. 461, 234 P. 1101, 236 P. 245, as follows:
"'It is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar' * * *."
This is in accord with the general rule. See 53 Am. Jur., Trial § 10. Applying the principle to the present situation, we think the court was fully justified in continuing to give its attention to another matter before it and at the conclusion thereof disposing of the litigation in which appellant was interested. It would be impractical to require a trial court to give a separate notice of hearing to any litigant whose case was postponed for a short time because of a priority of other hearings. In fact, we think it would be an obstruction of justice and an unwarranted delay in procedures. A litigant whose case is set but not reached because of other pending matters is obligated to await and be prepared to proceed at such time as the court is free.
The briefs and arguments have dealt with affidavits and testimony of counsel and the statement of the court regarding the claimed actual notice or lack thereof as to the setting of the case. It is always to be regretted that any important matter must depend upon the recollection of persons interested in the outcome rather than to be determined by routine procedures or formal instructions. Be that as it may, the recollections of either court or counsel on these points become immaterial in the light of the presumption above discussed.
Although a consideration of the merit of appellant's defense is unnecessary to a disposition of the case, this point may be of some interest. The Motion to Vacate Judgment in alleging the meritorious defense recited, inter alia, appellant's derivation of title, the assignment of rights of predecessors in interest to it, its present ownership of legal and equitable mining rights in the claims, a settlement between plaintiff and Mountain Mesa Uranium Corporation without appellant's knowledge, a denial by Mountain Mesa of appellant's rights, and a suit in the Federal district court to adjudicate such rights. Nothing in said motion alluded to any specific matters which bore upon the rights of appellant in the mining claims as opposed to the plaintiff's. A review of the exhibits which were rejected by the trial court indicates that they related primarily to the chain of title of appellant and constituted no claimed basis of right of either Riverton Uranium Corporation or its predecessors in interest against The Rim Group. The Motion to Vacate Judgment did not allege, and the appellant in the hearing thereon did not offer to prove, either the nature of the original instrument from which it claimed to derive title or its compliance with the terms of said instrument. Thus, there was no clear showing of a meritorious defense upon which the trial court could properly exercise its discretion to vacate the judgment. It is significant also to note counsel's repeated statements in both testimony and argument that his client had relied upon Mountain Mesa to "carry the ball." On one occasion he said, "we are following along on the coattails of Mountain Mesa." Appellant is therefore in no position to rely as it does upon the pronouncement of Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713, which indicates the desirability of trying cases on the merits but also points out that the determination of the propriety of vacating a judgment and allowing a new trial is within the sound exercise of judicial discretion by the trial court. Appellant may have had a meritorious defense, but if so, the facts to substantiate it should have been presented to the trial court as a justification for the vacation of the default judgment.
Affirmed
ON PETITION FOR REHEARING (No. 2797; April 15th, 1958; 323 P.2d 939)
OPINION
The Riverton Uranium Corporation in its application for rehearing concedes that in the absence of a showing to the contrary a public officer is presumed to have performed a duty imposed upon him by law but urges the existence in the present case of uncontradicted testimony refuting the presumption that the clerk mailed the order. No such testimony is pointed out, and a reference to the record shows that the only testimony on the subject is that of G.L. Spence. His statements, therefore, are important in the consideration of the application for rehearing.
At one time on direct examination Mr. Spence said, "The order of November 9th was never received." However, with relation to this on cross-examination he stated:
"I can't swear to this Court that I didn't [receive a copy of the November 9th order]. I can only swear to this Court that I haven't a copy of it in my possession * * *."
Later Mr. Spence in purporting to ask himself questions by way of redirect examination avoided any statement relating to the mailing of the order as provided by statute but instead approached the matter solely from the standpoint of the knowledge which he had, saying, "I am willing to represent that we had no actual knowledge of the setting of this matter on December 6th, 1956."
Since the law presumes that the clerk mailed a copy of the order to the Riverton Uranium Corporation and such presumption stands unrebutted, the case must be resolved on that basis. Accordingly, the petition for rehearing must be denied.
Denied.