Opinion
No, 5673.
September 21, 1931.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action to vacate judgment. Judgment for plaintiff. Affirmed.
O.P. Duvall and Frank L. Stephan, for Appellants.
A judgment will never be opened for the purpose of letting in a purely technical or unconscionable defense and under no circumstances unless the party seeking relief offers to do equity. ( Bernhard v. Idaho Bank Trust Co., 21 Idaho 598 (605-607, 608, 609), Ann. Cas. 1913E, 120, 123 P. 481, and cases cited therein; Fales v. Weeter Lumber Co., Ltd., 26 Idaho 367, 143 P. 526; Council Imp. Co. v. Draper, 16 Idaho 541, 102 Pac. 7; 15 Cal. Jur. 38, sec. 133, and cases cited therein; Whitney v. Kelley, 94 Cal. 146, 28 Am. St. 106, 29 P. 624, 15 L.R.A. 813; 15 Cal. Jur., sec. 128, p. 29; 34 C. J. 443, 489.)
Period of time of notice of trial, if required, may be waived or shortened by consent, and actual notice of the date set for trial on the part of a defendant or his attorney constitutes such waiver. (38 Cyc. 1278; 46 C. J. 552; Walberg v. Underwood, 39 Cal.App. 748, 180 P. 55; Anaconda Copper Min. Co. v. Ravalli County, 56 Mont. 530, 186 P. 332; Canty v. Pierce Anderson, 173 Cal. 205, 159 P. 582; 24 Cal. Jur. 724.)
O.C. Hall, for Respondent.
The giving of notice is a duty which statute imposes upon justice before he has any authority to proceed with trial. ( Jones v. Justice Court, 97 Cal. 523, 32 P. 575.)
Service of notice of day fixed for trial is jurisdictional prerequisite. ( City of Los Angles v. Young, 118 Cal. 295, 62 Am. St. 234, 50 P. 263, 264.)
Docket entry is not proof of notice. Mere entry in justice's docket that plaintiff's attorney filed affidavits of service of notice of trial is not evidence that they contained proper proof that such notice had been given to defendant. ( Jones v. Justice Court, 97 Cal. 523, 32 P. 575.)
Respondent sued in the district court seeking, so far as material to a decision of this case, to restrain the enforcement of a judgment previously rendered in probate court against respondent in favor of the appellant auto company, on the ground that the probate court had rendered said judgment without complying with sec. 5, chap. 113, 1927 Sess. Laws, which provides that in probate or justice court, five days' notice of the setting of the case must be given to the parties or their attorneys.
Respondent attached to, and made part of his complaint herein, the probate court docket, which shows with respect to the point at issue as follows:
"On this 13th day of February, 1928. Case set for trial for Friday, February 17th, 1928, at 10 o'clock A. M. and all parties duly notified."
While ambiguous, it thus appears, and appellants do not claim otherwise, that the setting of the case was made, and notice thereof given, not earlier than February 13th. At the most, therefore, but four days' notice was given, since under C. S., sec. 9451, the first day is excluded, and the last day included, which would make but four days' notice. ( Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499; Soderman v. Peterson, 36 Idaho 414, 211 P. 448.)
Appellants contend that the complaint was fatally defective because it did not plead facts showing a meritorious defense, citing Bernhard v. Idaho Bank Trust Co., 21 Idaho 598, Ann. Cas. 1913E, 120, 123 P. 481. The gist of that decision pertinent herein was as follows:
"If a judgment is void upon its face, it is subject to collateral attack and may be attacked whenever and wherever it is brought into the question; but if it is not void upon its face, an entirely different question is presented, and then a meritorious defense must be set up in such action."
California has held that section 850, Code of Civil Procedure, identical with sec. 5, chap. 113, 1927 Sess. Laws, supra, is essential to the authority of the justice or probate courts to proceed with the trial of the case. ( Elder v. Justice Court of Third Tp., 136 Cal. 364, 68 P. 1022; Green v. Rogers, 18 Cal.App. 572, 123 P. 974.)
It thus appears on the face of the probate court judgment and docket that the judgment was void, and respondent's complaint was sufficient.
Despite appellant's contention to the contrary, the title of chapter 113 was sufficiently broad to cover the entire subject matter of the act, which is therefore not unconstitutional. ( Boise City v. Baxter, 41 Idaho 368, at 375, 376, 238 Pac. 1029.)
Judgment affirmed; costs awarded to respondent.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.