Reeves v. Wisenor

629 P.2d 667, 102 Idaho 271, 1981 Ida. LEXIS 337

• Court: Idaho Supreme Court
• Decided: May 5, 1981
• Docket: 13571
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal in which the sole issue is the denial of a motion to set aside a default judgment. We affirm.

On June 24, 1979, respondents Reeves filed a complaint against appellant Wisenor for breach of a lease and assault and battery. Wisenor contacted an attorney and thereafter attorneys for the parties conducted settlement negotiations. As of October 11 or 12, 1979, no answer to the complaint had been filed and the final contact between their attorneys was a telephone conversation of that date. The context of that telephone conversation between those attorneys is in dispute.

Reeves’ attorney sent Wisenor and Wise-nor’s attorney a notice of intent to make application for default, and on October 30, a hearing was held thereon at which no appearance was made on behalf of Wisenor. An order of default was filed at 9:25 a. m. An answer on behalf of Wisenor was received and filed at 10:00 a. m. on the same day. On that same day, at 4:00 p. m., judgment was entered in favor of the Reeves. On November 7, 1979, Wisenor filed a motion to set aside the judgment on the grounds of mistake, inadvertence and excusable neglect as provided in I.R.C.P. 60(b). A hearing was held on that motion at which testimony was received and thereafter the motion was denied.

A default judgment may be set aside on the basis of mistake, inadvertence, surprise or excusable neglect. I.R.C.P. 55(c), 60(b). A motion to set aside a default judgment presents the trial court with a factual determination. Hearst Corp. v. Keller, 100 Idaho 10, 592 P.2d 66 (1979). Where, as here, mistake is alleged as grounds for relief, such must be factual rather than legal and must be conduct that might be expected of a reasonably prudent person under the same circumstances. Hearst Corp. v. Keller, supra; Johnson v. Noland, 78 Idaho 642, 308 P.2d 588 (1957); Orange Transp. Co. v. Taylor, 71 Idaho 275, 230 P.2d 689 (1951). The trial court here had before it the affidavits and the arguments of the attorneys and the testimony of Alberta Reeves taken at the hearing. We further note that the notice of intent to make application for default was mailed to Wisenor’s attorney approximately one week after the telephone conversation which Wisenor’s attorney argues was the basis for his mistake and inadvertence. The trial judge made a factual determination based on conflicting evidence, thereon exercising his judicial discretion, and that exercise of discretion will not be disturbed on appeal.

Further, we hold that in addition to meeting the requirements of I.R.C.P. 60(b), a party seeking to set aside a default judgment must show a meritorious defense going beyond the mere notice requirements which would be sufficient if plead before default. Hearst Corp. v. Keller, supra; Thomas v. Stevens, 78 Idaho 266, 300 P.2d 811 (1956). That policy is founded on the doctrine that it would be an idle exercise for a court to set aside a default if, in fact, there is no real justiciable controversy. Hearst Corp. v. Keller, supra. Here, there is no showing that such a meritorious defense existed.

The judgment and orders of the trial court are affirmed. Costs to respondents.

BAKES, C. J., and McFADDEN and DONALDSON, JJ.., concur.