Balfour-Guthrie Investment Co. v. Sawday

[229]

HENSHAW, J.

— Plaintiff sued appellant, Sawday, and others by a complaint containing allegations appropriate both in an action in ejectment and in an action to quiet title. The land was described by government subdivisions as “the southwest quarter of the southeast quarter and the southeast quarter of the southwest quarter,” etc. For answer, appellant, Sawday, disclaimed “all right, title, and interest in the lands herein sued for

and as set forth in the plaintiff’s complaint.”

His default was subsequently entered by the clerk. The cause was set for trial upon the twenty-sixth day of June, but no notice of the trial was served upon him. Hearing, at a late day, that the cause was set for trial, and might affect his lands, he hastened to the county seat, employed counsel, and upon the case coming up for hearing, asked leave to participate, which was denied. He also asked leave to amend his answer, which application was also denied, and he was denied the right to participate in any manner at the trial. Thereafter, upon July 28th, he moved the court to set aside his default, and this was denied. On August 1st, findings of fact and conclusions of law and the judgment were filed. In the complaint the land and premises were described by government subdivisions alone. In the judgment, in addition to such description, the land was described by metes and bounds; natural boundaries and monuments were designated and located, and reference, for the purpose of delimiting the land, was made to a map or diagram, which forms part of the judgment roll in another and independent action. Promptly after the entry of this judgment, upon August 11, 1899, the appellant moved the court to vacate and set it aside, which motion was denied. He then moved to strike out that part of the description in the findings and judgment not contained in the complaint, and to limit the description of the land to the language of the complaint. This, also, was denied. He further moved to set aside the judgment, so far as it affected him, and this motion was denied. From the judgment and from the orders denying his several motions he prosecutes these appeals.

To an understanding of the matter it is necessary to clothe the foregoing naked statement with other established facts. The defendant Sawday never did, and does not now, make claim to any of the lands in the complaint described,