Points decided [No. 2414] A. BAUMANN AND MARTHA BAUMANN (HUSBAND AND WIFE), RESPONDENTS, v. NEVADA COLONY CORPORATION (A CORPORATION), APPELLANT. [189 Pac. 245] 1. JUDGMENT -COURT HAS WIDE DISCRETION TO OPEN DEFAULTS. There is no general rule for determining when a default should be opened, but every case must depend upon its own facts, and the lower court is necessarily vested with a wide discretion in passing upon those facts. 2. JUDGMENT-DISCRETION TO OPEN DEFAULTS SHOULD BE LIBERALLY EXERCISED. The discretion of the courts to set aside defaults should be liberally exercised to the end that case may be determined on its merits. 3. JUDGMENT NEGLIGENCE OF CORPORATE OFFICERS PERMITTING DEFAULT HELD EXCUSABLE. Where the attorneys for corporation sent an answer to its secretary to verify and file, but before its arrival the secretary had resigned and he merely delivered the answer to assistant secretary with other unimportant papers, and the new secretary and the president did not discover it in time, though they were negligent, their negligence was excusable, and the trial court should have set the default aside. 4. JUDGMENT-OPENING DEFAULT CANNOT BE REFUSED FOR NEGLIGENCE OF FORMER CORPORATION OFFICER. Where the secretary of a corporation had resigned before receiving an answer to be verified and filed, his conduct in merely handing the answer with other papers to his assistant without any statement as to necessity for attending to it was inexcusable negligence; but, since he was no longer a corporate officer, such negligence could not be attributed to the corporation. 5. JUDGMENT-DEFAULT HELD NOT DUE TO "FORGETFULNESS." Where a corporation defaulted because its officers did not discover an answer received by a former secretary after his resignation delivered with other unimportant papers, the default could not be attributed to "forgetfulness," which implies previous knowledge. APPEAL from the Eighth Judicial District Court, Churchill County; T. C. Hart, Judge. Action by A. Baumann and wife against the Nevada Colony Corporation. From an order denying defendant's motion to vacate the default and judgment entered against it, defendant appeals. Reversed, with Argument for Respondents directions to set aside the default and judgment to permit defendant to answer upon terms. Ayres & Gardiner, for Appellant: The default and judgment were permitted to be entered because of the excusable neglect and inadvertence of the appellant, and it was error of law and an abuse of the discretion of the court under the circumstances to refuse to open such default. "Where there is any doubt as to whether or not the relief should be granted, that doubt should be resolved in favor of the relief." Banta v. Siller, 121 Cal. 414; Vinson v. Railroad, 147 Cal. 479; Watson v. Railroad, 41 Cal. 20; Sherman v. S. P. Co., 31 Nev. 285; Melde v. Reynolds, 129 Cal. 308; Horton v. New Pass Co., 31 Nev. 184. "Ordinarily an appellate court will not disturb an order setting aside a default regularly entered where the application is made upon the ground of inadvertence or excusable neglect, supported by an affidavit or showing of merits. While the granting or denying of such a motion is within the discretion of the trial court, it is a legal discretion, to be exercised liberally in the interest of justice." Esden v. May, 36 Nev. 611. M. J. Scanlan and James Glynn, for Respondents: The default judgment was entered according to law and the rules of the court. The refusal to set aside. the judgment and open the default was within the exercise of the sound discretion of the court and should be affirmed. "In applications to set aside judgments by default or entered in ex parte proceedings, affidavits in support of such applications are to be construed most strongly against the party making the application." Hallin v. Penney, 209 Ill. 230. Application to vacate a default judgment is addressed to the sound discretion of the trial court. "The appellate court will not interfere with the action of the trial court Opinion of the Court-Ducker, J. in passing upon such motion." Lynch v. Arizona E. M. Co., 179 Pac. 956; Penryn L. Co. v. Kahori, 173 Pac. 612; Esden v. May, 36 Nev. 611. Forgetfulness is not sufficient ground for vacating or setting aside a judgment by default. Lovell v. Willis, 129 Pac. 1052. "Inexcusable neglect of an agent of a party will be imputed to such party, and failure of both defendant and agent to inquire concerning the disposition of the case constitutes inexcusable negligence." Stallings v. Spruill, 86 S. E. 890; Lynch v. Arizona E. M. Co., supra. Unless the discretion of the trial court is abused, its action will be sustained on appeal. Lynn v. Knob Hill Improvement Co., 169 Pac. 1009; Picher v. Hornaday, 202 S. W. 410. By the Court, DUCKER, J.: On the 18th day of May, 1918, plaintiffs commenced an action in the district court in Churchill County against the Nevada Colony Corporation, a corporation. The complaint was twice amended, and on the 3d day of April, 1919, the court made and entered an order overruling a demurrer in the second amended complaint and gave the corporation fifteen days in which to answer. On the 18th day of April, a stipulation signed by the attorneys for the respective parties was filed extending the time to answer to April 25, 1919. On the 6th day of June, 1919, no answer having been filed in the action, a default was taken, and, upon the evidence produced by plaintiffs in support of their cause of action, the court duly entered its judgment. A motion to vacate and set aside the default and judgment filed on the 28th day of June, 1919, was denied by order of the court. Hence this appeal. The ground of the motion was that said default and judgment resulted through the mistake, surprise, and inadvertence of the defendant. A verified answer was Opinion of the Court-Ducker, J. presented with the motion, which defendant proposed to file, by leave of the court. The motion was supported by affidavits of former and present officers of the corporation and by an affidavit of a former attorney for defendant. The affidavit of the attorney, A. Grant Miller, sets forth that during the times mentioned therein he was one of the attorneys of record in the case for the corporation; that he mailed to E. Opdyke, the former secretary of said corporation, an answer in said case, accompanied by a letter in which he asked the said Opdyke to swear to said answer and to file it; that affiant had always corresponded with said Opdyke on the legal affairs of the corporation, and when he mailed said answer believed he was still, and would continue to be, the secretary and the proper person to whom said answer should be sent; that affiant never received any word from said Opdyke or from any other person that said answer had not been filed; that he took it for granted that it had been properly filed, and a few days later, and within the time for answering, according to the best recollection of affiant, he personally delivered to James Glynn, associated with M. J. Scanlan, a copy of said answer, thereby serving the answer upon the plaintiffs; that the time within which to answer expired upon April 25, 1919; that affiant did not know until the 2d day of June, 1919, that any default had been taken, and always supposed that the case was at issue. E. Opdyke in his affidavit deposes and says: "That between the 1st day of January, 1919, and the 10th day of April, 1919, he was the duly qualified and acting secretary of the Nevada Colony Corporation, a corporation, and on the said 19th day of April, 1919, he resigned his office as secretary of said corporation, and ever since said 19th day of April, 1919, he was not secretary, or other officer of said corporation; that on Monday, the 21st day of April, 1919, affiant received through the United States mail, at Nevada City, via Fallon, Nevada (East Star Route), about 5 o'clock p. m. of Opinion of the Court-Ducker, J. said day, from Miller & Mashburn, attorneys of record for said Nevada Colony Corporation, an amended answer in the case of A. Baumann and Martha Baumann, husband and wife, plaintiffs, v. Nevada Colony Corporation, a corporation, defendant, Case No. 824; that at the time of receiving said amended answer affiant was not the secretary or other officer of said defendant corporation; that on said Monday, the 21st day of April, 1919, affiant left said amended answer in the office of the secretary of said corporation, but no one was in the office at the time to receive said papers; that therefore, on Tuesday, the 22d day of April, 1919, affiant delivered to C. E. Maxwell, the then acting secretary of said corporation, defendant, said amended answer, together with many other papers belonging to said corporation, in the office of said secretary of said corporation; that said amended answer was together with many notes and papers in different cases and no special reference was made to said amended answer at the time of the delivery, or thereafter; affiant further says that he does not remember of the matter of said amended answer being mentioned to C. E. Maxwell, secretary." The affidavit of C. E. Maxwell sets forth: "That in the month of March, 1919, he was duly elected and qualified assistant secretary of the Nevada Colony Corporation; that on the 19th day of April, 1919, E. Opdyke, secretary, resigned the office of secretary of said corporation, and said resignation was duly accepted on said 19th day of April, 1919, and thereafter, from April 20, 1919, to April 30, 1919, he acted as secretary of said corporation. "That on the 22d day of April, 1919, E. Opdyke, the former secretary of said corporation, delivered to him a large number of papers belonging to said corporation, among which were notes, mortgages and court papers, and correspondence from attorneys; the exact character of each paper was at the time, and ever since has been, unknown to affiant; that he was in possession of said |