Farmers' Co-Operative Ass'n v. Roper

*48On Motion for Rehearing.

(Submitted January 16, 1920. Decided March 13, 1920.)

MR. JUSTICE COOPER

delivered the opinion of the court.

In appellant’s petition for a rehearing we find the following: [2] “As we construe the effect of the decision in the ease at bar, hereafter when a defendant desires to set a default against him aside, all that will be necessary for him to do in the matter of showing that he has a defense upon the merits is to-tender a general denial of the allegations set forth in the complaint of the plaintiff. If the rule stated in the 'Pearce and Ponían Gases has been overruled by this court as to the subject matter under consideration, then we submit that this court should so state, so that district courts and practicing attorneys-may not be in a quandary as to the law upon the subject matter under discussion. * * * Under the rule stated in the opinion in the case at bar, the provisions of the law relative to entering the defaults of defendants, for practical purposes, becomes, of no force or effect.”

Counsel in their petition for a rehearing overlook the fact that while the answer filed consisted merely of general denials of all the allegations of the complaint.it was accompanied by three affidavits setting forth substantial facts, which, if true, constitute a complete defense upon the merits. In another respect, too, the-.present case differs from the cases relied upon by counsel, in that,, before the time for the appearance of defendant had expired, they were told by their attorney that “everything had heen taken care of.” Upon the truth of this statement the defendants relied, assuming, as they had a right to do, that their appearance-had been entered and that they were not then in default. Be- - cause of the statement of counsel and the absence of negligence on the part of defendants themselves, the district court rightfully allowed them a trial upon the merits. This was in complete harmony with the spirit of the statute and the legislative perspective in its enactment. In Scilly v. Babcock, 39 Mont. 536, 104 Pac., 677, counsel for defendant, after being retained, entered upon a *49political campaign and forgot the case entirely; and for aught that appears, the defendant himself evinced no greater interest in his defense.

Neither is there merit in the contention that the court should have refused to set the default aside because the proffered answer consisted merely of general denials. In Merchants Co. v. Los Angeles, 128 Cal. 619, 61 Pac. 277, it is said: “The verified answer was served with the notice of motion and became a part of the moving papers. It contained specific denials of the material allegations of the complaint, and also affirmative matter which, if true, was a complete defense to the action. It was ‘ duly verified, ’ and was an answer for each and all of the defendants. It was, therefore, of itself a sufficient affidavit of merit.” (See, also, Smith v. McCormick, 52 Mont., on rehearing, at p. 326.)

It is obvious, that in the determination of matters of this kind, [3] the trial court possesses advantages superior to those enjoyed by this court. Hence it is that this court will be less, inclined to reverse an order granting, than one refusing, an application to open a default. This distinction counsel have wholly failed to observe. ■ The complaint alleges an agreement upon the part of defendants to sell, and plaintiffs to purchase, 4,000 bushels of wheat at the price of $1.07 per bushel — an allegation the answer denies. The affidavits of merits deny the-making of any agreement whatsoever concerning a sale of wheat, or that defendants ever offered, agreed or promised to sell to plaintiff any wheat at all; set forth the circumstances attending the deposit of 120 bushels intended only for storage in the elevator reputed to belong to plaintiff, an offer on the part of defendants to sell the same to plaintiff for the current market price on said day of $1.80 per bushel, and the refusal by plaintiff of' that offer. This showing of a defense raised at least a doubt in the mind of the judge of the district court whether justice would not be better subserved by permitting the case to be tried upon its merits, rather than to deny defendants a trial altogether.

By a casual glance at the cases counsel insist we have overruled, it will appear that relief was denied because the answer *50tendered consisted of mere general denials, unsupported by allegations of fact sufficient to enable the court to test the efficacy of the proposed defense. In the case of Pearce v. Butte Electric Ry. Co., 40 Mont. 321, 106 Pac. 563, the opinion states that no affidavit of merits whatever was filed. In Vadnais v. East Butte etc. Co., 42 Mont. 543, 113 Pac. 747, this statement appears in the opinion: "There is not a word in this entire record to indicate that the defendant had or has any defense whatever to plaintiff’s cause of action. There was not any answer tendered, and the affidavit is silent upon the subject. ’ ’ In Donlan v. Thompson Falls etc. Co., 42 Mont. 257, 112 Pac. 445, it appears that defendant tendered no answer, but "contented itself with asking for additional time to answer. ’ ’ On page 267 this language will be found in the opinion: "Nowhere does it appear that the defendants have a meritorious defense to the action.”

We are satisfied that our previous rulings upon the subject matter involved remain unaffected by anything we have said herein, and that the petition for a rehearing should he, and is, denied.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurdy and Matthews concur.