Smith v. McCormick

157 P. 1010, 52 Mont. 324, 1916 Mont. LEXIS 63

• Court: Montana Supreme Court
• Decided: April 28, 1916
• Docket: No. 3,646
• Status: Published

Opinions

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In this action personal service of summons was made upon defendant Daly on August 21, 1913, and his default entered on September 11, for want of an appearance. Thereafter proof was submitted by the plaintiff and a verdict in his favor returned and judgment entered. On June 5, 1914, defendant Daly moved the court to set aside the default and permit him to answer. The motion was granted and plaintiff appealed.

Section 6589, Revised Codes, authorizes a court to set aside [1] a default entered through mistake, inadvertence, surprise or excusable neglect, provided application therefor be made within a reasonable time, but in no case exceeding six months after such default was entered. In State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 35 L. R. A. (n. s.) 1098, 99 Pac. 291, we considered this section, and eon-' eerning its meaning and effect said: “Under the statute (Rev. Codes, sec. 6589), the motion in such cases must be made within a reasonable time after the date of the entry of judgment, but in no case exceeding six months, and the statute is the limit of the court’s power in such eases. After the expiration of the time fixed therein, the power of the court over the judgment absolutely ceases, and it is without jurisdiction to vacate or modify it.” That construction was approved and adopted in State ex rel. Smotherman v. District Court, 51 Mont. 495, 153 Pac. 1019.

Upon the expiration of six months from the entry of default, the authority of the court over it ceased and the order made more than nine months after September 11, 1914, is void for want of jurisdiction in the court to make it, and for that reason is reversed.

Reversed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.