Culver v. Mountain Home Electric Co.
Idaho Supreme Court
APPEAL from tbe District Court of the Fourth Judicial District, for ElmOre County. Hon. Edward A. Walters, Judge. An action for damages and for injunctive relief. Judgment for plaintiff. Defendant appeals. It was error to enter default and take judgment when there was a demurrer on file undisposed of. (6 Ency. PI. & Pr. 93:) And it is immaterial that the demurrer was filed after the time required to answer. (6 Ency.
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APPEAL from tbe District Court of the Fourth Judicial District, for ElmOre County. Hon. Edward A. Walters, Judge. An action for damages and for injunctive relief. Judgment for plaintiff. Defendant appeals. It was error to enter default and take judgment when there was a demurrer on file undisposed of. (6 Ency. PI. & Pr. 93:) And it is immaterial that the demurrer was filed after the time required to answer. (6 Ency. PI. & Pr. 84, 85.) The showing that the default was taken through the excusable neglect, if neglect at all, of appellant’s counsel, as well as that of the client, is a ground for…
1Opinion of the CourtStewart, J.
— On June 27, 1908, the respondent filed an amended complaint against the appellant. On July 10, 1908, the default of the defendant was entered by the clerk for failure to appear and answer. On July 22d the appellant filed a demurrer to the amended complaint. On Oct. 22, 1908, the minutes of the court recite, “This matter came on regularly to be heard this day, upon the motion of the defendant to set aside default heretofore entered, and be permitted to answer, W. C. Howie, Esq., appearing as counsel for defendant, and J. M. Owen, Esq., appearing as counsel *671for plaintiff. The court being…
2Cases cited6 opinions
- Bailey v. TaaffeCalifornia Supreme Court · 1866
- Holzeman v. HenneberryIdaho Supreme Court · 1905
- Holland Bank v. LieuallenIdaho Supreme Court · 1898
- Western Loan & Savings Co. v. SmithIdaho Supreme Court · 1906
- Smith v. ClyneIdaho Supreme Court · 1909
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3Cited by20 opinions
- Savage v. StokesIdaho Supreme Court · 1934
- Dellwo v. PetersenIdaho Supreme Court · 1921
- Thomas v. StevensIdaho Supreme Court · 1956
- Central Deep Creek Orchard Co. v. C. C. Taft Co.Idaho Supreme Court · 1921
- Occidental Life Insurance v. NiendorfIdaho Supreme Court · 1935
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