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Show .f . . . W tftr .yJ f . U w rt;"itfewV4lt ifc-W- w ''. lfc(c v. - Vsl.ty.H.-i- g 'Vi- i THE DAILY RECORD PAGE FOUR MONDAY, AUGUST 27, 1973 In The Supreme Court Of The State Of Utah Airkem Intermountain Inc., and Frances M. Hickey, Plaintiffs and Respondents, On appeal, defendant contends that the trial court abused its dison the ground of excusable No. 13148 cretion by refusing to set aside the judgment FILED August 20, 1973 neglect. L. M. Cummings, Clerk The trial court is endowed with considerable latitude of discretion in granting or denying a motion to relieve a party from a final judgment under Rule 60(b)(1), U.R.C.P., and this court will reverse the trial court v. Ardell L. Parker, Defendant and Appellant. I The trial court only where an abuse of this discretion is clearly established must balance two valid considerations', on the one hand, to relieve the party of the judgment vitiates the effect of res judicata and creates a hardship for the successful litigant by causing him to prosecute more than once his action and subjecting him to the possible loss of collecting his judgment. On the other hand, the court desires to protect the losing party who has not had the opportunity to present his claim or defense. The rule that the courts will incline towards granting relief to a party, who has not had the opportunity to present his case, is ordinarily applied at the trial court level, and this court will not reverse the determination of the trial court merely because the motion could have been granted. For this court to overturn the discretion of the lower court in refusing to vacate a valid judgment, the requirements of public policy demand more than a mere statement that a person did not have his day in court when full opportunity for a fair hearing was afforded to him or his legal representative. The movant must show that he has used due diligence and that he was prevented from appearing by circumstances over which he had no control. CALLISTER. Chief Justice; Defendant appeals from an order of the trial court denying his motion to relieve him from a final judgment on the ground of excusable neglect, under Rule 60(b)(1), U.R.C.P. Plaintiffs initiated this action on January 26, 1972, alleging that defendant had executed a promissory note for good and valuable consideration to plaintiffs in the sum of $1,000 on June 24, 1970; that defendant had defaulted and the entire amount of $1, 000 plus 8 interest per annum was due and owing; and that defendant had refused to pay the same. Plaintiffs sought recovery for the unpaid balance, interests, costs, and attorney's fees as provided under the terms of the contract. Defendant engaged counsel and filed an answer on February 8, 1972, admitting the execution of the note but denying that a good and valuable consideration ws paid for the same. Plaintiffs filed a request for a trial setting on February 14, 1972, and defense counsel informed his client that the trial would probably be set early in the autumn. Under a letter dated May 5, 1972, counsel for both parties were informed of a trial setting on September 21, 1972. In the instant action, defendant was informed in February that the matter would probably be set for trial in the early autumn; he also knew of the irregular hours during which he was present in his home. His failure to contact his counsel under such circumstances from February to September 21 could reasonably be considered as not constituting due diligence by the trial court. Defense counsel was informed in early May of the trial setting in September, his belated efforts ten days prior to trial to contact his client, particularly when there is no allegation as to the means of communication utilised, might reasonably be considered as not indicating due diligence. Since defendant's conduct was not entirely inexcusable, the trial court did not abuse its discretion by refusing to relieve defendant of the judgment. The order of the trial court is affirmed. Costs are awarded to plaintiffs. On the day of the trial, defense counsel filed a notice of withdrawal with the clerk; plaintiffs' counsel had not received notice thereof at the time he appeared for trial. The trial court refused permission to defense counsel to withdraw pursuant to Rule 10 of the Rules of Practice of the Third Judicial District Court. Since defendant neither appeared personally nor through counsel, his default was entered. The trial proceeded, witnesses were called, the evidence to support plaintiffs cause was adduced, and judgment was awarded to the plaintiffs. Defendant filed a motion to vacate the judgment on October 16, 1972, alleging that he had a meritorious defense and that for more than ten days prior to the trial date of September 10, 1972, defense counsel had been unable to contact him at his home for the reason that defendant was seldom home until approximately 10 o'clock at night and that he departed early in the morning for work. Defendant filed an accompanying affidavit, wherein he explained that he was employed in an adjoining county and departed for work at 7:30 a.m. and returned about 6:30 p.m. , each Monday through Friday. He further stated that his wife was ill with terminal cancer and had been in a hospital or nursing home for the past three months. He believed that he was difficult to contact, except before 7:30 a.m. and after 9:00 p.m., and that his attorney had been unsuccessful in his attempt to communicate with him several days prior to the trial setting. Upon hearing, the trial court denied defendant's motion. WE CONCUR: F. Henri Henriod, Justice A. H. Ellett, Justice J. Allan Crockett, Justice R. L. Tuckett, Justice Central Finance Company v. Kynaston, 22 Utah 2d 284, 452 P. 2d 316 (1969); Board of Education of Granite School District v. Cox, 14 Utah 2d 385, 384 P. 2d 806 (1963); Mayhew v. Standard Gilsonite Co., 14 Utah 2d 52, 376 P. 2d 951 (1962) 2. Warren v. Dixon Ranch Company, 123 Utah 416, 260 P.2d 741 (19531. 1. t Jan nQ0 Warranty Deeds Associates Const Cur.liffe etux Aq4 to Allen I. rl Iarrv S. to Willard f. Slsnero3 etux 772 L. Johnson r, Rax 79! -- -- etux Young i art '.Cnudson John D, etux etux to 77 J. Lloyd etux to etux C, Ronald Van Ieuven Raymond .1, to Sterling W 83 p to rnarr 3, lernarr 3. IVirse Vakenaka etux iat 2 ?2r- .ieulen H, tihlrah etux to Charon V,, Johnson etal to Monte G, McKee etux Kenneth H, Hunt A, Ammons etux etux to Movata L. Sard on etux to Wells Stake Ch'rch Jesus Christ p57 Twentieth Century Housing Development to Dennis Johnston etux Wilson etux to Atkinson Jr etux Charlotte Muller Wagner Click etux For the handyman. Ixcated in area showing good return on Mid 7 or 40's investment. Stu Mont Newer units in So. Salt lake area. $11,640.00 gross income. $105,850 list price. Contract terms or trade. Attractive to small investor. Rock Howard 521,4743 Disabled American Veterans to Redevelopment 485-987- 485-006- 4 2 Approx. 10 years old in Sugar House area. Out of State owner anxious for sale. $20,160 gross Income $169,950 asking price. Contract possible. Dave 487-334- Bill 466,3495 0 W-- M Real Estate Associates 359-375-7 32 East 2nd South W-- 1 Mewmar to Charles etux Gerald 1, Bromstead etux of'. to Stephen S. etux Cuss . Micheal F, Montgomery etux to Mitchell Sheldon etux 04 Q50 Junus T. Dixon etux to Kent Osterloh etux 95I Harry II. Shar etux to Kingsley C, Torresan etux Franz P, Jchreyer etux Eleanor Lutz to Earl Rayland Butler etux 962 94 etux Dolan Maurice Curtis to Ralph E. Hill etux' 96 James A, '..re etux Marvin W. Wallin etal to Jordan Builders Supply to Kitchelle Strain John H. Clarke etux to Stephen A, It Is etux PP? Cley Black etux to Ronald I, Sadler etux 972 Mfl, Agency 97? Willie McKnlght to Douglas Conners etux p.94 Karlyn Construction to Robert Wallace etux 9p8 Vede W, Wilson to Dorothy B. McClellan Robert Wallace etux to Daniel balsam etux Zlons Sec to Cameo Minerals Inc 911 teff Const to Preston W. 992 Cameo Comaby etux Shirley S, Verl H. Buxton Jr etux to Lynn S. Xartchner etux 9 932 752 - Leasetek, Inc, 163 S. Main SLC to Unlroyal Inc; lnven 796 - A. J. Mackay & Sons, 3435 900 S. SLC to Foulger Equip Co; equip 797 - Bonneville Machine, Inc. 1835 W. 1500 S. SLC to J. M. Gris ley Machne Tools; equip W. to Inc., 167 State of etux Harris, 5554 S. to Id. Ind. Cr. Co Mry Mry; hhg 978 - Richard E. Shlra, 5050 S. 1470 W. SLC to Commrcl Crdt Plan Inc; furn Ct. SLC to Capital Fin' Serv; hhg 382 000 - Fenton G. qulnn, 3j96 SLC to Capitl Flnan Serv 001 - Melvin J. Erickson, 1480 S. Orchard Dr. Bntfl to Frmrs State 002 f Stohl Osterloh, 914 SLC to Frst Sec. 977 - Ronald etal Lawrence V, Pilgrim James P. Grann etux to Quality Accept SLC to Lckhrt Fin SLC furn hhg Corp; equip 972 - Evans, St. Lynn A. Morgan, 3171 Bruce 806 - Dr. James E. 200 N. Lgn 976 - Hade Paris Lane Bk; boat Minerals to Thomas 805 - Varren E. Davis, 3086 E. 4345 S SLC to Duce Sprtlng Gds Inc; empr Temple Bk; equip 990 999 - Dominic Marino, 962 Grace Flaher, 219 Dorchester Dr. SLC to Duce Sprt Gds Inc; boat 1450 S. to Comnrcl 987 - Hensen, Neils, 125 E. Brdway SLC to Heinshns SLC; machnry 997 - Ronald E. Wolcott, 690 E. Brittney Dr. SLC to Frst Sec State Bk; boat 998 - Clint Robinson, 8623 S. 1425 E. Sandy to City Fin Co; hhg 804 - Robert E. Steel, Lithographing and Co. Inc, 755 H. 800 Printing S. SLC to The Helnsohns Co; machnry & equip Co; 802 - Theodore A. Miller, 441 E. 5770 S. Mry to Salt Lake Postal Empl Crdt Un; boat M. 985 - Sun S. 4100 U. 799 - Kent G. Jones, 380 E. 300 S.SLC to Genrl Crdt Co; hhg W. 991 p95 983 - Roy E. Anderson, 2829 Sweet Basil SLC to Hsehd Fin Corp; consmr gds Cooper, 6903 S. to ?.ions Frst Natnl equip etux to Son 751 - Bob L 2510 E. SLC Bk; equip 959 Dennis D, Mathias etux to Sheldon J, Hamilton etux Illlack etux & Sec. Bk; in.en 798 - Dr. Newell E. Warr, 2153 Parkway. SLC to Bk of SLC; David A, Moss 981 - H. C. Alder Construction Co, 679 Vine St. SLC to Deseret Leasing Co; equi to Estate Realty 969 Amand L. l.oorda etux Midwest Const Erwin P75 266-647- 03 0 H, Q6fl to N-- brent 750 - Carefree Homos, Inc, 4081 S. State Mry to Commrcl to Midwest Const 03 057 Sheldon J, Hamilton etux 871 George K. Joseph Hampton Income Property : to Itlcharr etal to to Larry 3. 'lsneros etux I i'. . 1'lddleton T. frank Swallow Joe A. Qu&trocky eVix frank and .onct Low t.o V.lddleton etux W. 842 Varceil , Drake rt, Farrow etux to etux Curtis etal Middleton etux Anthony etux Middleton 1, George Alfred 0, ?ur3e etux to p03 etux . Anthony Ostler otux , Thomasetux K. 37 Anthcv.y to J. Jelson etux to arlllne r:. Vigil Bullock Dev-ii-s Bartley p.32 Gene Zanonl Utalnberg etux to etux J. Carolln R. Virgil bullock to Karlin I . tester etux P2Q FINANCING STATEMENTS Bk; equip - Stephen A. Dailey, 296 Pelllnore, N. SLC to Dial Fin Co of Bntfl ;hhg 008 Rd. - Lee T. Cox, 2040 Fortune to Natnl Indstrl Serv SLC Corp; .equip 010 - Lawrence OBborne, 1367 S. Lincoln St. SLC to Mry Frst Thrft & In Co; hhg 012 W. - Virgil Steadman, 7980 2820 S. Mgna Co; equip to Vly Implmnt |