Bromley v. Haberman

583 P.2d 703, 1978 Wyo. LEXIS 226
CourtWyoming Supreme Court
DecidedAugust 15, 1978
DocketNo. 4903
StatusPublished
Cited by3 cases

This text of 583 P.2d 703 (Bromley v. Haberman) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bromley v. Haberman, 583 P.2d 703, 1978 Wyo. LEXIS 226 (Wyo. 1978).

Opinion

McCLINTOCK, Justice.

John R. Bromley and Jan H. Gaudina, defendants below, appeal from judgment of the district court of Park County, granting to plaintiffs Richard F. Haberman and Nellie Haberman the amount of $61,106.18, plus interest and costs. The judgment was entered pursuant to motion of the plaintiffs for default judgment after defendants had failed to appear at a deposition to be taken by the plaintiffs of these defendants, notwithstanding that the same district court, through a retired judge, whose designation to hear matters in the district has not been questioned, had entered an order indefinitely continuing the taking of the depositions. Several issues are raised and discussed in the briefs of counsel, but we find it unnecessary to consider any of these except the issue as to the effect of the assigned judge’s order. We hold that whether or not error was committed in entering the order, it was entered with jurisdiction of the matter and defendants could not then be in default in failing to appear at the deposition hearing. Entry of default judgment was therefore error.

It appears that the lawsuit from its inception had languished. The plaintiffs attempted discovery at an earlier time but were frustrated. The result of this effort was the entry of a default judgment against all defendants. This judgment was subsequently set aside as to Bromley and Gaudina only on December 14, 1976. Against Heritage Trust Company the judgment stands and no appeal is taken.

After the previous default was set aside, plaintiffs through their counsel on February 1, 1977 gave notice that the depositions of Bromley and Gaudina would be taken in Cody, Wyoming on February 22. On February 17, new counsel filed appearance for Gaudina, Bromley retaining the counsel who until that time had represented both. The defendants, through their respective attorneys, each petitioned the court on February 17 for a continuance of the noticed depositions, alleging hardship and expense, requesting costs in advance, and claiming oral notice to plaintiffs on February 16.

On February 18, an ex parte order was obtained from Judge Harkins, of the Fifth Judicial District, acting in the absence of Judge Dixon, continuing this deposition until a date to be determined, pending a hearing on the merits of the petitions. This order was filed February 22. Defendants did not attend the deposition scheduled, but through counsel on that date presented a copy of Judge Harkins’ order to the plaintiff. By order of Judge Dixon, to whom the case was primarily assigned, dated March 28, the hearing on all pending motions was set for May 24. On May 11, plaintiff filed a motion requesting a default judgment for failure to appear at the noticed deposition. Defendants resisted, and in response filed motions for summary judgment.

Judge Dixon, after consideration of oral and written arguments, rendered judgment which was signed and entered September 13. In that judgment he finds that defendants had filed petitions for continuance but that “said petitions and order for continuance were contrary to the Wyoming Rules of Civil Procedure and that the same deprived Plaintiffs of their right to due notice thereof and opportunity to appear at such hearing;” that defendants were dilatory in their defense and “at no time have either of the individual Defendants set forth a meritorious defense to the claims of Plaintiffs’ [sic].” It was therefore found proper, under Rule 37(b)(2)(C), W.R.C.P. to grant judgment by default against defendants, with interest and costs.

Initially, we note that no issue of jurisdiction has been raised. Nor has any party questioned the propriety of Judge Harkins’ participation. Hence, we shall not inquire into these problems, other than to note that Judge Harkins, when presented with the petition in the absence of Judge Dixon, had authority and power to act thereon. In addition, no party has attacked the correctness of the discovery procedure in any relevant and meaningful way as it would affect the appeal as decided.

[705]*705We believe it well settled that the courts of general jurisdiction have express and inherent power and authority to regulate the practice of law by parties and counsel through appropriate rules and orders. People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851 (1928); Mendicino v. Magagna, Wyo., 572 P.2d 21 (1977). This includes the power and authority to control the course of litigation, Holm v. State, Wyo., 404 P.2d 740 (1965), including pretrial discovery, Tomlinson v. Tomlinson, 338 Mich. 274, 61 N.W.2d 102 (1953). We believe it beyond doubt that our court and the district courts of this state have this ability, and can grant, as in this case, continuances either on their own motion, or at the request of the participants, where necessary to effectuate justice. Sheppard v. Wilson, 47 U.S. (6 How.) 260, 12 L.Ed. 430 (1948); Hays v. State, Wyo., 522 P.2d 1004 (1974); Holly Sugar Corporation v. Perez, Wyo., 508 P.2d 595 (1973); Glover v. Berger, 72 Wyo. 221, 263 P.2d 498 (1953); Hinton v. Saul, 37 Wyo. 78, 259 P. 185 (1927).

We also believe it clear that the participants in an action have the right and duty to follow an order issued by a court of general jurisdiction, when that order appears valid and fair on its face, and the party has no reason to believe otherwise. As the Illinois appellate court stated- — correctly, we feel — in Beasley v. Hanrahan, 29 Ill.App.3d 508, 331 N.E.2d 138, 140-141 (1975):

“ * * * All orders are presumed valid and will stand until corrected on review or set aside by some form of authorized and permissible direct attack. (United States v. Bishopp (1961) 286 F.2d 320, cert. denied 366 U.S. 963, 81 S.Ct. 1924, 6 L.Ed.2d 1254; Fauntleroy v. Lum (1908) 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Ex parte Roe (1914) 234 U.S. 70, 34 S.Ct. 722, 58 L.Ed. 1217.)”

Although we have not found a case identical factually to the one presented here, several are analogous.

In Fidelity-Phenix Fire Ins. Co. v. Oliver, 25 Tenn.App. 114,152 S.W.2d 254 (1941) the Tennessee appellate court set aside a default judgment entered against the appellant, who failed to file the appropriate responsive pleading, because the default was entered before the expiration of a continuance granted by the trial court. The court reiterated the rule that a continuance is to remain effective for the time allotted unless set aside by judicial act, and no default could be taken in the interim. See also In re Bump’s Estate, 171 Kan. 442, 233 P.2d 478 (1951).

Town of Portage v. Clifford, 254 Ind. 443,

Related

Byrd v. Mahaffey
2003 WY 137 (Wyoming Supreme Court, 2003)
Honan v. Honan
809 P.2d 783 (Wyoming Supreme Court, 1991)
Gaudina v. Haberman
644 P.2d 159 (Wyoming Supreme Court, 1982)

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Bluebook (online)
583 P.2d 703, 1978 Wyo. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bromley-v-haberman-wyo-1978.