The opinion
BUDGE, Justice
(concurring in part and dissenting in part).
I concur in that part of the majority opinion in which it is held “the trial court was without jurisdiction to render or enter judgment for punitive damages. Consequently, the judgment therefor is void.” No punitive damages were alleged in the complaint, other than in the prayer thereof, which is no part of the complaint upon which liability may be bottomed.
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I dissent from that part of the majority opinion reversing the trial court’s order and judgment setting aside and vacating the default judgment.
Judgments by default are not favored. The granting or refusing to set aside a default judgment rests in the sound, legal discretion of the trial court. Courts listen more readily to appeals from order denying relief from default judgments than from one granting relief, because of the policy of applying remedial statutes readily to permit trial on the merits, and slight abuse of discretion in refusing to set aside such judgments is sufficient to justify reversal of the order. This principle is exemplified by the provisions of sec. 5-905, I.C.A., where the following language is used:
“
* * * The court may likewise, in its discretion, after notice to the adverse party, * * * allow an answer to be made after the time limited by this Code, and also 'relieve a party * * * from a judgment * * * taken against him through his mistake, inadvertence, surprise or excusable neglect; and whenever, for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order or proceeding complained of was taken, the court, or the judge thereof in vacation, may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. * * *” Application to vacate and set aside the default judgment in the instant case was taken within six months after the entry of the default judgment. A-default judgment does not become final until the expiration of the time allowed for setting it aside. Brainard v. Coeur d’Alene Antimony Min. Co., 35 Idaho 742 , 208 P. 855 . The mere reading of the affidavits in opposition to the motion to vacate the default judgment is, in my opinion, sufficient to establish inadvertence and excusable neglect, without taking into consideration the affidavits in support of the motion to vacate the default judgment, which definitely show excusable neglect. However, the affidavits filed on both sides were before the court and received its carefiil consideration, and sustained its dis- . cretion in vacating the default judgment in order that the case might be tried upon the merits as the statute itself forceably indicates. The statute is so broad and comprehensive that it allows the court, or judge thereof in vacation, to grant orders vacating default judgments. It was clearly the intention of the legislature, even by the amendment to the above statute, to provide that parties should be relieved from default judgments should it appear that attorneys employed -be negligent in filing the necessary pleadings within the time provided by statute, thereby expressing a policy incompatible with a contrary view. If there be a doubt, and in this case there certainly is, that doubt should be resolved in favor of the trial court’s action and not against it.
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I call attention to a limited number of •decisions of this court which bear out the views heretofore expressed.
An application to open a default is addressed to the sound, legal discretion of the trial court, and the order of the court will not be reversed on appeal, unless it clearly appears that the court ábused its discretion; and in determining the question of •discretion, the power of the court should be freely and liberally exercised under the statute, to mold and direct its proceedings, .so as to dispose of cases upon their substantial merits. Holland Bank v. Lieuallen, 6 Idaho 127 , 53 P. 398 ; Holzman & Co. v. Henneberry, 11 Idaho 428 , 83 P. 497 ; Western Loan & Savings Co. v. Smith, 12 Idaho 94 , 85 P. 1084 ; Pittock v. Buck, 15 Idaho 47 , 96 P. 212 ; Culver v. Mountain Home Elec. Co., 17 Idaho 669 , 107 P. 65 ; Harr v. Kight, 18 Idaho 53 , 108 P. 539 ; Morbeck v. Bradford-Kennedy Co., 19 Idaho 83 , 113 P. 89 ; Green v. Kandle, 20 Idaho 190 , 118 P. 90 ; Humphreys v. Idaho Gold Mines Co., 21 Idaho 126 , 120 P. 823 , 40 L.R.A.,N.S., 817; Hamilton v. Hamilton, 21 Idaho 672 , 123 P. 630 ; Sessions v. Walker, 34 Idaho 362 , 201 P. 709 ; Crane v. City of Harrison, 34 Idaho 167 , 200 P. 892 . Order denying a motion to set aside a default should be sustained if there is any ground for doing so. Weisgerber v. Prescher, 37 Idaho 653, 654 , 217 P. 615 .
In Richards v. Richards, 24 Idaho 87 , 132 P. 576, 578 , in the course of the opinion it is said: “A motion like this is addressed to the sound legal discretion of the court, and when that discretion has been brought to bear upon all the facts presented in the motion and has been exercised in the light of the statutes bearing upon the questions encompassed by the motion,
and there is nothing which makes it appear that such discretion has been arbitrarily exercised in disregard of the established rules of law and principles of justice, an appellate court should not and will not disturb the order and judgment of the court that was called upon to exercise the
discretion.” (Citing numerous authorities.) (Emphasis added.) And this is true whether the court grants or refuses to grant the motion to set aside the default.
Section 9187, Revised Codes of Montana (1935) on the point here discussed, is substantially the same as sec. 5-905, I.C.A. The Montana supreme court has construed their statute in the following cases, holding to the same rule as this court, and has refused to disturb the action of the trial court in the exercise of its discretion in granting or refusing to grant a motion to set aside a default judgment: Reynolds v. Gladys Belle Oil Co., 75 Mont. 332 , 243 P. 576 ; Madson v. Petrie Tractor & Equipment Co., 106 Mont. 382 , 77 P.2d 1038 ; Davis v. Hubbard, Mont., 179 P.2d 533 .
In the case at bar justice would not be defeated upon the sustaining of the judgment of the court below vacating the default judgment and permitting respondents’
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answer to remain on file, thereby making up the issues in order that the case might be tried upon its merits. Otherwise, respondents, having a meritorious defense, as they verily believe, are denied their right to defend by the adoption of a rule that, from my investigation, is not supported by the great weight of authority and the better considered cases.
Justice should never be denied. The courts should be open to redress the wrongs and enforce the rights of all who appear before .them. Under the provisions of section 18, article 1 of the constitution of this state, as well as by the unwritten dictates of natural justice, the courts are commanded to administer justice without prejudice. Day v. Day, 12 Idaho 556 , 86 P. 531 , 10 Ann.Cas. 260.
The judgment of the trial court should be affirmed, except as otha~wise herein indicated, and the cause remanded for trial.