Bucholz v. Harthun

• Decision Date: 12 November 1931
• Docket Number: No. 5966.,5966.
• Citation: 61 N.D. 547,239 N.W. 161
• Parties: BUCHOLZ et al. v. HARTHUN.
• Court: North Dakota Supreme Court

61 N.D. 547

239 N.W. 161

BUCHOLZ et al.

v.HARTHUN.

No. 5966.

Supreme Court of North Dakota.

Nov. 12, 1931.

Syllabus by the Court.

Under sections 7655 and 7666, Comp. Laws 1913, the settlement of a statement of a case, or applications for extensions of time for settlement, are not jurisdictional, and orders extending time may be made by the district court ex parte. Johnson v. Northern Pacific Railroad Co., 1 N. D. 354.

On motion to vacate a default judgment, where it appears from the record that at the time the judgment was ordered and entered, the defendant was suffering from delusions and was mentally and physically sick and incompetent, for reasons stated in the opinion, the judgment should be vacated, and the defendant permitted to defend on the merits by a guardian ad litem.

Under section 7401, Comp. Laws 1913, the district court or judge may appoint a guardian for a person of unsound mind for the action, as the case may require, upon the application of any party thereto, or any relative or friend.

Appeal from District Court, Barnes County; P. G. Swenson, Judge.

Action by Arthur Bucholz and others, against Herman Harthun. From an order overruling defendant's motion to vacate a default judgment, defendant appeals.

Order reversed in accordance with opinion.

Lemke & Weaver, of Fargo, for appellant.

Chas. G. Bangert, of Enderlin, for respondents.

BURKE, J.

[1] This is an appeal from an order overruling a motion to vacate a judgment. The first question arises on a motion to dismiss the appeal on the ground that the statement of the case was not settled in the time prescribed by statute. The statute does not fix any specified time in which the statement of the case must be settled. Section 7655 Comp. Laws 1913, provides that: “within thirty days after the notice of the entry of judgment or the order to be reviewed, or such further time as the court shall allow. * * *” In other words, the statute fixes thirty days, and then provides such other time as the court may allow, leaving it entirely in the discretion of the court; and the discretion of the court is emphasized in section 7666, Comp. Laws 1913. The record shows in the instant case that the time was extended on affidavits and without notice to the respondents, and it is the contention of the respondents that such extensions are void because made without notice to them. The statute does not require that notice of an application for an extension of time shall be served upon the other party. The orders may be made ex parte. Johnson v. Northern Pacific Railroad Co., 1 N. D. 354, 48 N. W. 227. Besides, on the 16th day of June, 1931, the attorneys for appellant and respondents stipulated in writing “that the hearing on the Motion to Settle the Statement of the Case shall be heard at Valley City, North Dakota, and same is to be taken up at a time to suit the convenience of the court as soon as possible after June 20th, the day set for hearing said Motion. * * *” In accordance with this stipulation and the affidavit of one of the attorneys for appellant, the court ordered a further stay of all proceedings “until the Statement of the Case is actually settled in accordance with said Stipulation.” The statement of the case was settled on June 24th, which was apparently at the earliest convenience of the court, and in accordance with the stipulation.

It is the contention also of respondents that the briefs were not filed in time. The briefs were filed before the opening of the term of court at which the case was to be argued, and since the filing of the briefs is not jurisdictional, and was in no way prejudicial to respondents, the motion to dismiss is overruled. The verified answer states a good defense, and an affidavit of merit was not necessary. French & Sons Piano Co. v. Getts, 49 N. D. 577, 192 N. W. 765;Peterson v. Finnegan, 45 N. D. 101, 176 N. W. 734;Harris v. Hessin, 32 N. D. 25, 155 N. W. 41.

[2] The action is one to quiet title to a quarter section of land in Barnes county. Appellant's answer alleges that he is the owner of said land under a warranty deed from Amelia Bucholz, who claims title to said land under a patent from the United States. At the time of the institution of said action, Hugo Remington, of Lisbon, N. D., represented the appellant, and when the case came on for trial on the 10th day of July, 1930, the defendant appeared in court in person, and at the opening of the trial insisted that he had discharged his attorney, Hugo P. Remington. The court was adjourned until two o'clock in the afternoon to give the defendant an opportunity to employ counsel. When court convened at two o'clock, there was a note for the trial judge, reading as follows: “To the Honorable Yurch. Please Ex Youse me. as I kan not gid a Yawyer. So I Made up my Min to go Home. to Stay away from Robber and Thifs, and Make me Mor Sick. * * *

H. E. Harthun.

Pleas Ex Yuse me.”

The court proceeded with the trial, and judgment was taken against the defendant by default.

On the 19th day of December, 1930, on a petition of Fred Underwood, Honorable A. T. Cole, one of the judges of the district court of Barnes county, appointed the said Fred Underwood, guardian ad litem for the defendant to represent him in said action, and on the 26th day of January, 1931, the motion to vacate the judgment was denied. The motion was based upon many affidavits, and Exhibits A and B, which were introduced in respondents' evidence at the time of the trial on July 10, 1930. Exhibit A has already been quoted, and Exhibit B, a letter addressed to the clerk of the court by the defendant, reads as follows:

“Enderlin N. Dak. 25 1930

To the Clerk of the District Court at Waly City N. Dak.

Dear Sir

Yours from 23 on hand and notis that there will by a Trial Case of Enton Bucholz et al vs Herman E. Harthun has been set for trial Thursday July 10th at 10 o'clock. Yes Mr. Hugo Remington kan not act as my atorny anny more-as he is the man that poisoned me the last Part of May-him and the Banker had it fin fixt. the Law givin me Slow Poison. that akts on my harth and Brains. and the god me under Lawers Coresporancy. so that I Kan not gid any Lawer-but if the Lord will giv me Halt and strangt. I will aper for my owen Self-defens.-I am a wirry Sick man. I am Harthbroken. Suffer from Broken Down Nervs. Hy Blod Presher.-and Poisn.-my blod in my harth is pounning from that poisen-and it stops the Circulagen to the fin Blod Wains. to the Brain Circolagen-and I am all-wis Disy and Somethim Unconchis so that my mind is a Dark Blank, buth I will by ther god will by with me-and will defend myself aginst the robers, murders and thifs-the ar Hungrin and Hungring for My Flesh and my Blod-to Kill me-and then rob me fo all I god-Pleas hand this letter to the Honnorable Judge I am Your Truly,

Herman E. Harthun

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I hav a honist Deed-and the Deed is Honist...