In Scheinwald v. Bartlett, 51 Nev. 155, 271 P. 468, this court held that in absence of entry of default it is discretionary with the trial court to permit an answer to be filed. It was there stated, 51 Nev. 158, 271 P. 469, "The default of respondent has not been entered.Summary of this case from Opaco Lumber v. Phipps
November 13, 1928.
Appeal from the Second Judicial District Court, County of Washoe, Department No. 2. George A. Bartlett, Judge.
Clyde D. Souter and John S. Field, for Petitioner:
E.W. Cheney, for Respondent:
Section 5060 of the civil practice act, vol. 2, Rev. Laws of Nevada, 1912, provides:
"Every pleading shall be subscribed by the party or his attorney, and when the complaint is verified by affidavit the answer and reply shall be verified also, except as provided in the next section." The next section does not touch upon the situation in the instant case.
From sec. 5084 of the civil practice act, in vol. 2, Rev. Laws of Nevada, 1912, it is at once apparent that the legislature has made provision whereby the court may, upon order, enlarge the time for filing an answer where the time has not yet expired. It is equally apparent that where the time has expired the legislative provision definitely fixes the method according to which the defendant may secure permission to file an answer after the time limited by law has expired.
The defendant in the instant case not only absolutely failed to follow the statutory requirement, but from all that appeared at the time would have been entirely unable to present any affidavit showing any good cause for the court to grant permission to file the answer out of time.
It is also clear, from the first statutory citation hereinabove, that the answer, being unverified, contrary to the mandatory requirement of the statute, is therefore no answer at all.
In view of the above circumstances, it is submitted that the plaintiff is entitled to have the default of the defendant forthwith entered and to have an immediate trial and disposition of his cause of action. He has no plain, speedy and adequate remedy at law. In addition, the failure of the respondent to enter the default of the defendant on plaintiff's motion and proceed with the trial of the case is a refusal on the part of the respondent to perform an act which the law especially enjoins as a duty upon the respondent, resulting from his office as district judge. California Pine Box and Lumber Co. v. Mogan, Judge, 108 P. (Cal.App. 1919) 882; Newell v. Superior Court of Los Angeles County, 149 P. 998; State v. Taylor, 138 N.W. (S.D.) 372; Dey v. McAlister, 169 P. (Ariz. 1918) 458; Colthurst v. Fitzgerald, 207 P. 471 (Cal. D.C.A. 1922); Crocker v. Conrey, 140 Cal. 213, 73 P. 1006; De Forrest v. Coffey, 154 Cal. 444, 98 P. 27; Sakurai v. Superior Court, 65 Cal.App. 280, 223 P. 575; People v. Graham (Colo. 1891), 26 P. 936. The rule in Nevada is perhaps best stated in the case of The State of Nevada, ex rel. N.C. Keane, Relator, v. M.A. Murphy, District Judge, etc., Respondent, 19 Nev. 89.
At the time the case was called for trial an answer had been filed and no formal default had been entered therein.
Plaintiff did have a plain, speedy and adequate remedy in the ordinary course of law, in that said plaintiff could have moved to have the verified answer stricken, and no regular motion to strike the said answer of the defendant from the files had been made by plaintiff.
This is an original proceeding in mandamus. Petitioner is plaintiff in a divorce action in the above-entitled court, and seeks the writ to compel the court to enter the default of defendant and proceed with the trial of the case. The salient facts are as follows: The time for defendant to answer or otherwise plead to petitioner's verified complaint for divorce had been extended by stipulation to and including June 4, 1928. On June 5, 1928, defendant was in default, and the case set for hearing at 9 a.m. of that day. At that time petitioner moved the court to enter the default of the defendant and proceed with the trial of the case. Defendant's attorney was present and resisted the motion. He also asked permission to file an unverified answer. The court denied petitioner's motion, and permitted defendant to file an unverified answer. Since the filing of the same, a verified answer has been filed by defendant, and a motion made for allowances.
1. The matter of allowing the filing of an answer after the time fixed by statute is largely within the discretion of the judge of the lower court. This is especially so before default has been entered. Conley v. Chedic, 7 Nev. 336; Bowers v. Dickerson, 18 Cal. 420.
In the former case the court said:
"If the defendant was in default, it was a matter much in the discretion of the judge below to allow the filing of an answer after the time prescribed by statute, especially as no default had been entered, and there was no showing that the failure to plead had occasioned any delay or injury to the opposite party."
2. It is contended that the unverified answer raised no issue, and the court was therefore without authority to permit it to be filed. Be that as it may, it could have no bearing on the matter. The court may have erred in this respect, but the case, nevertheless, falls within the rule stated. The default of respondent has not been entered. There is a verified answer on file. The court, in our opinion, has discretion to deal with it as the justice of the case may require.
The writ should therefore be denied.
It is so ordered.