This action was instituted August 4, 1939, to recover the sum of $1,696.45 *Page 542 with interest at 6% representing the amount expended by Robert N. Stanfield for feeding certain cattle belonging to appellant. Respondent is assignee of the contract with appellant. On the date of filing complaint, writ of attachment issued against appellant's property, and property was attached to satisfy respondent's demand. Return by sheriff was made August 5th. Appellant being a resident of Oregon, order issued August 7th from the district court directing service of summons outside the state. August 8th summons was served on appellant in the state of Oregon.
September 23, 1939, plaintiff (respondent here) appeared by counsel, no appearance having been made by defendant (appellant) in person or by attorney; whereupon default of defendant was entered and judgment was taken against him. September 25th defendant filed motion to vacate and set aside "the alleged or pretended service of summons and complaint upon said defendant," on the grounds:
"that an affidavit for the service of said summons, either by publication or personally, outside the State of Idaho was not made and filed in said action, nor was an order of the court made and filed authorizing the service of said summons outside the State of Idaho in lieu of such publication as required by section 5-508, Idaho Code Annotated, 1932."
September 25th the motion was heard by the court, plaintiff and defendant both being represented by their respective counsel. In reply to the motion, counsel for plaintiff asserted that an affidavit for service of summons outside the state had been made and filed and that an order had been entered directing such service. However, there was no notation of any such affidavit or order on the register of actions, nor were they among the files of the case. The court ordered a search of the files of the clerk's office, to ascertain if they could be found, and the following day they were found among the files in another case, in which it appeared that the affidavit had been placed by inadvertence of the deputy clerk, prior to the service of the summons, and that proper order had been made thereon. Thereafter and on September 27th, counsel for defendant filed a further motion to set aside the judgment and default and to permit defendant to answer and accompanied the application by affidavit and a proffered answer *Page 543 to the complaint. Defendant's attorneys (who are not the same ones who appear for him in this court) set forth in their affidavit, that they repeatedly went to the clerk's office and examined the register of actions and the files in the case, to ascertain whether affidavit and order for service of summons outside the state had been made, but found no evidence whatever of such affidavit or order and so assumed that none had been made. After a hearing thereon, the trial court denied the motion and this appeal is from the order overruling motion to vacate and set aside the judgment and default.
Here the actual personal service had been made outside the state and this fact is admitted by appellant. The order for substituted service or personal service outside the state had also been made. The only cause of complaint is that the order for substituted service and the affidavit were not on file, and were not known to appellant. They were actually lodged with the clerk but were not among the files in this particular case.
It is well settled that "It is the service, and not the proof thereof, that gives the court jurisdiction." (Blandy v. ModernBox Mfg. Co., 40 Idaho 356, 232 P. 1095, and other cases therein cited.) The court had jurisdiction to enter the judgment.
Appellant knew that he had been served with summons, and this constituted prima facie notice that an order had been made for the service. (See American Fruit Growers, Inc., v. Walmstad,44 Idaho 786, 260 P. 168.) He acted upon such service and employed counsel. If his counsel wanted to take advantage of any defect in the order or failure to make an order, he might have moved to quash the service, which motion would have automatically extended his time for answer until the motion was disposed of. (See Central Deep Creek Orchard Co. v. Taft Co.,34 Idaho 458, 466, 202 P. 1062, and cases cited; Robinson v.Earl Fruit Co. of the Northwest, 35 Idaho 254, 204 P. 534, approved in In re Smith, 38 Idaho 746, at 749, 225 P. 495.) Under the statute, sec. 5-905, I. C. A., a motion to open a default and vacate a judgment in certain specified cases is addressed to the discretion of the trial court; and that means a reasonable and just judicial *Page 544 discretion, rather than arbitrary or oppressive. (Dellwo v.Petersen, 34 Idaho 697, 203 P. 472.) This, however, is not the kind of case under sec. 5-905 that falls within thediscretionary powers of the court.
Appellant's contention here, for a reversal, is stated by his counsel as follows:
"The appellant contends: That the failure of the trial court to set aside the default and judgment in the instant case was an abuse of discretion and contrary to the principles of law as followed by this and other jurisdictions, in that the motion and affidavits filed and the records and files in the case show that the legal representatives of the appellant relied upon the records of said court and were misled thereby and that such reliance was such a mistake of fact that it was the duty of the trial court to set aside the default and judgment on the grounds that they had been taken through the mistake,inadvertence, surprise, or excusable neglect of the appellant'slegal representatives." (Italics supplied.)
Clearly the defendant himself was guilty of no negligence or inadvertence; he employed counsel and entrusted him with his defense. Whatever failure there was to act was "failure" of his attorney and not of appellant. His attorney, however, was misled by the failure of either the register of actions or the files in the case, to in any way or manner disclose that an order for service had been made, and therefore assuming no order had been made. At the same time, counsel was guilty "of failure . . . . to file or serve" a motion to quash service of summons prior to the expiration of the time allowed for appearance and answer which would have prevented a default.
The register of actions showed the filing of an undertaking for attachment, affidavit for attachment, the issuance of writ of attachment, all of which were among the files in the case, together with the sheriff's return on attachment showing the levy of the writ and that the sheriff had taken in his possession thereunder the sum of $1,352.35, cash belonging to the defendant, all furnishing convincing evidence that plaintiff was intending to proceed under this substituted service. *Page 545
Under the statute (sec. 5-905, as amended by chap. 235 of the 1921 Sess. Laws, p. 526), it is provided that,
"Whenever any judgment, order or proceeding is taken against a party otherwise without default, through the neglect orfailure of any attorney of such party to file or serve any paper within the time limited therefor, the court, or the judge thereof, in vacation, shall, upon application filed within thetime above limited, set aside such judgment, order or proceeding and may, in its discretion, require the attorney guilty of such failure or neglect to pay the costs or expenses actually and necessarily occasioned to the opposite party by such failure or neglect, and may, in its discretion, also impose upon such attorney a penalty of not exceeding $100.00." (Italics supplied.)
This statute grants relief for both "neglect" and "failure" on the part of an attorney to protect the interest of his client; and the imposition of a penalty on the attorney is lodged in the "discretion" of the judge. These two words convey distinct and different implications.
The foregoing quotation was inserted in sec. 5-905 by amendment in 1921 for the evident purpose of relieving a litigant from a default, where he has entrusted his case to an attorney and is guilty of no neglect himself. By this clause of the statute, it was mandatory upon and not discretionary with the trial judge, to open the default in this case. (Brainard v.Coeur d'Alene Antimony Min. Co., 35 Idaho 742, 208 P. 855;Weaver v. Rambow, 37 Idaho 645, 217 P. 610; Wagner v. Mower,41 Idaho 380, 237 P. 118; Miller v. Brinkman, 48 Idaho 232,281 P. 372.) It was not a matter of discretion with the trial court. The application was made within the statutory time and it is made mandatory upon the court to vacate a judgment entered under such circumstances. *Page 546