Russell v. Piper

201 P. 436, 101 Or. 680, 1921 Ore. LEXIS 199

• Court: Oregon Supreme Court
• Decided: October 25, 1921
• Status: Published

Opinion

BEAN, J.

Defendant assigns that the court erred in imposing as a condition precedent in setting aside the default and allowing a defense upon the merits, the filing of the undertaking after finding from the motion and affidavits that the default and judgment was entered against him through mistake and excusable neglect; that the order was an abuse of discretion.

We glean from the briefs that the defendant, Piper, is a resident of Walla Walla, Washington, engaged with another in the real estate business. At the time of the service of the summons and complaint upon him. he was at the county seat of Crook County, Oregon, in attendance as a witness upon the trial of a cause involving a similar note, executed at the same time for the same amount which had also been negotiated. Counsel for plaintiff mentions in his brief that the judge who made the order appealed from heard the testimony in that case, Vincent v. Russell, which is now pending upon appeal in this court.

1. The discretion lodged in the court by the statute above noted- is a legal one, to be exercised in furtherance of justice and in accordance with the rules of modern jurisprudence. In employing the power conferred by the statute, by granting or withholding permission to defend upon the merits after a default judgment against a party, when it is shown that such default was occasioned through the mistake, inadvertence, surprise, or excusable neglect of such person, and an answer on the merits is tendered, it is not contemplated by the law that the court will pass upon the merits of the case, or decide the issues. That matter is left to be determined at the trial of the cause, if such hearing is permitted. The trial court adjudged that the default order and judgment were entered by reason of the mistake and excusable neglect of defendant, and that an answer was timely tendered by defendant. There is no appeal by plaintiff from such findings. Counsel for plaintiff suggests that only a part of the averments of the complaint are denied in the answer tendered. Unless the defendant’s answer goes to the merits, the default should not have been opened. The answer denies the gist of the allegations of the complaint, although it does not disclose the amount of the consideration for the note.

2. The courts of this state are open to the residents of other states and countries to maintain and defend actions substantially upon the same conditions as though such litigants were residents of this state. A slight difference as to security for costs, in cases of a plaintiff who is a nonresident, or a foreign corporation, is provided for in Sections 579 and 580, Or. L.

Under all the circumstances of the case, as shown by the record, we approve that part of the record requiring defendant to pay the plaintiff’s costs of the action to the date of the order.

3. The judgment was regularly rendered and entered of record. Defendant is now the moving party in attacking the judgment, and we think it appropriate that as a further condition to opening the judgment he should be required to furnish an undertaking with sufficient sureties to pay any costs and disbursements that may hereafter be adjudged in favor of plaintiff in the action. It would also have been proper to have allowed the judgment to stand as security for plaintiff in order that he might not be placed in any less favorable position as to the satisfaction of any judgment that he may obtain against defendant.

4. The defendant properly made an application to be heard upon the merits of the case. No counter showing was made by plaintiff. We do not think that the law justifies the requirement that defendant furnish an undertaking with sureties conditioned to pay any judgment that plaintiff may recover upon the trial of the cause. For precedents in cases arising under various circumstances see 23 Cyc. 972; Kosher v. Stuart, 64 Or. 123 (121 Pac. 901, 129 Pac. 491); Brown v. Brown, 37 Minn. 128, (33 N. W. 546); Glickman v. Loew, 29 App. Div. 479, (51 N. Y. Supp. 1078); Brickel v. Train, 86 N. Y. Supp. 292; Union Bank v. Benjamin, 61 Wis. 512 (21 N. W. 523); note to Farmers’ Loan etc. v. Hale, 41 L. R. A. 222.

The cause will be remanded, with, direction to the Circuit Court to modify the order in accordance with this opinion. Modified.