Liverpool & London & Globe Insurance v. Martin Perrin & Co.

10 N.M. 90

• Court: New Mexico Supreme Court
• Decided: May 3, 1900
• Docket: 759
• Status: Published

Opinion

LELAND, A. J.

This cause comes into this court on error to the district court of Bernalillo county. Plaintiff in error seeks to have a default judgment of the lower court reversed, because of alleged error committed by the lower court in refusing to vacate and set aside its such default judgment. Plaintiff below recovered a default judgment against defendant below in a proceeding in garnishment for the sum of $344.66, together with costs. Defendant below first filed a motion for a new trial, which motion was heard and overruled by the trial court. Then a motion for a rehearing on the motion for a new trial was heard, and this motion was overruled. Affidavits and tounter-affidavits were heard by the court in the hearing of the motion for a new trial. To reverse these various rulings and judgment of the court defendant prosecutes error.

Defendant in error has filed a motion herein to dismiss the writ of error in this case, as they contend, pursuant to the provisions of sub-sections 172-173 of 2685 of the Compiled Laws of 1897. We can find no language in either of those sub-sections that we think would warrant this court in such a ruling. Those sections are remedial, and very broad language is used by the Legislature in their construction, and the rule that all remedial laws shall be liberally construed will not be departed from in this case. Therefore, the motion to dismiss the writ of error is overruled and dismissed, and the case retained in this court to be decided on its merits.

Plaintiff in error sets out four specific assignments of error, which are as follows, to wit:

1. The court erred in allowing defendant in error to take a default against plaintiff in error at the time said judgment was taken and allowed.

2. The court erred in refusing to set aside the default against plaintiff in error.

3. The court erred in refusing plaintiff in error a new trial of this cause.

4. The court erred in refusing plaintiff in error a new trial upon its motion for a new trial.

Pbactice: New trial: neglect oí attorney as ground of. For the purposes of this case, there is no reason why we can not consider all of the above assignments of error as one question. The contention of counsel for plaintiff in error, that' the particular member of the law firm who had charge of this case was taken by surprise, we do not think a valid legal argument in support of a motion for-a new trial. In the case of Hoiw v. Bod-man, 1 Disney’s Report, a Cincinnati case, the court say that “The mistake or error or neglect of counsel are not within the rule; they are acts of the client, and are not sufficient to justify the court in granting a new trial on this ground.” The assignment of error apparently relied on by plaintiff in error in its brief “That the court erred in refusing plaintiff in error a new trial of this case” must be determined from the whole record of the case, together with the affidavits and counter-affidavits made a part of the record.

The judgment below was rendered by the court after it had obtained jurisdiction of plaintiff in error, the rule day to plead had passed, and plaintiff below was clearly entitled to move the trial court for a judgment by default, and there is no error apparent in the record as to the phase of the case.

Practice: appellate and trial: new trial: discretion of trial court. Then the only phase of the case remaining to be determined is, did the lower court err in refusing to grant a new trial on the application and showing made by plaintiff in error? The lower court having had before it the affidavit of 'merit of plaintiff in error, together with numerous other affidavits, as well as the affidavit of attorney of defendant in error, overruled the motion for a new trial. The rule by which courts are governed in the matter of vacating default judgments and granting new trials thereon, we understand to be substantially as follows, to wit: Where a default judgment has been rendered and a motion is made by the defendant to vacate such judgment and grant a new trial, the motion must be supported by showing a good and valid existing defense to plaintiff's claim and a lawful justification for his absence from the court, covering the time of the rendition of such judgment. The fact that the neglect of the attorney is in law the neglect of the client, and the fact that the neglect of the attorney in a case is not a ground for a new trial; the case at bar must be decided without our passing on the merits or demerits of the proposed defense set out in the affidavit of plaintiff in error, and the case will be determined on the question of neglect of plaintiff in error to pursue his defense. The record discloses the fact that plaintiff in error had an agent and three lawyers employed in the city of Albuquerque, the county seat of Bernalillo county, to look after this business, and in the face of this fact it certainly does not lie in defendant’s mouth to complain of surprise in the matter of a default judgment with so many “watchmen on the walls.” The granting of a new trial being largely in the discretion of the trial judge, this court will not disturb the rulings of a trial court, unless there is a clear case made of an abuse of the discretion or palpable error apparent on the face of the record.

We are, therefore, of the opinion that there is no error apparent on the record, and that the case made by plaintiff in error is not strong enough to warrant this court in reversing the action of the trial court.

Wherefore the judgment of the district court is affirmed.

Mills, C. J., Parker and McFie, JJ., concur.