Citizens' National Bank of Sisseton v. Branden
| Decision Date | 31 March 1910 |
| Citation | 126 N.W. 102,19 N.D. 489 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Allen, J.
Action by the Citizens' National Bank of Sisseton, S.D. against P. Branden. From an order denying defendant's application to open a default judgment against him and permit him to interpose a defense, defendant appeals.
Reversed with directions.
Order of the district reversed, and judgment dated November 27 1908, vacated.
W. S Lauder and W. S. Lowry, for Appellant.
J. A Dwyer, for Respondent.
A summons and a complaint, alleging causes of action upon three promissory notes, were served upon defendant and appellant on October 23, 1908. Shortly thereafter he employed W. S. Lowry of Hankinson, as his attorney, and directed Mr. Lowry to arrange for the services of and associate with him in the defense of the action W. S. Lauder, an attorney of Wahpeton. Mr. Lowry made the arrangement directed by his client with Mr. Lauder, and paid him a retaining fee. The understanding, between the two attorneys was that Mr. Lauder should have exclusive charge of the preparation and service of an answer. Mr. Lauder avers that he intended in good faith, within the time allowed by law, to prepare and cause to be served on plaintiff's counsel a formal answer to the complaint. On November 17, 1908, in the course of his professional duties, he went to Napoleon, Logan county, and entered upon the defense of a criminal action, in which the charge against the defendant was murder in the first degree. He was continuously occupied in the trial of this case until December 4, 1908, during which period the entire labor of the defense devolved upon him, and his attention was so absorbed in this work that he forgot about this action, and entirely overlooked the fact that the time for answering therein expired on November 22, 1908, and failed to prepare or serve an answer in this case, or to give the matter attention in any particular whatever, until after the close of the murder trial. In the meantime, on November 27, 1908, the plaintiff in this case applied to the district court for judgment in default of answer, and pursuant to an order for judgment dated as of that day final judgment herein was entered on November 30, 1908. This judgment was docketed, and plaintiff caused execution to issue, and levied it upon certain property of the defendant held under attachment, and proceeded to sell the same. On December 5, 1908, Mr. Lauder was informed for the first time that judgment by default had been entered against the defendant. On the 7th of December thereafter he served upon plaintiff's attorney affidavits showing facts substantially as narrated above, and on an order to show cause applied to the district court to vacate and open up the judgment and permit defendant to interpose a defense to the action. With the affidavits was served a proposed answer in the action verified by the attorney, which alleged as a defense to all the notes declared upon that, on the 18th day of June, 1908, after due and regular proceedings under the bankruptcy laws of the United States in the United States District Court for the Northern Division of the District of South Dakota, a final order and decree of said court was entered whereby defendant was duly and completely discharged from all debts, claims, and liabilities contained in his schedules in said bankruptcy action, including, among others, the three notes sued upon in this case. The motion to open the judgment was strongly opposed by plaintiff, on the general ground of insufficiency of the application to warrant the relief applied for. Much stress was laid upon the point that no sufficient affidavit of merits was made on the application. A hearing was had before the district court on December 21, 1908, and thereafter, on December 29th, an order was made denying the relief prayed for by appellant. Afterward, on January 30, 1909, on application of appellant, the district court made an order granting leave to appellant to renew his application to open up and defend against the judgment in question. The showing made upon this application was the same as upon the former hearing, except that it included an affidavit of appellant containing, among other averments, one with reference to the merits of the defense that seems to be regarded as sufficient upon that point. A hearing on this second application was had on February 8, 1909, and the district court, on May 14, 1909, made its order, again denying the motion of appellant to open up and permit a defense upon the merits to plaintiff's action. From this order an appeal is taken; the single point of exception being that the court erred in making this final order.
Plaintiff contends, so far as the first order in concerned, that the showing made by appellant was entirely insufficient to warrant the opening up of a judgment entered by default under the conditions shown, and that all material points presented upon the second application were res adjudicata by reason of the order first made. But, aside from this point, and of that presented on the first application of the insufficiency of the affidavit of merits, appellant contends there was on neither application a sufficient showing of cause to warrant any action other than that taken by the district court. We have no doubt of the power of the district court to set aside its order of December 29, 1908, and to permit appellant to renew his motion as though made in the first instance. Whether or not the affidavit of merits made on the first application is sufficient we need not consider, as any deficiency that might then be said to exist was corrected upon the second application. We will therefore consider whether or not the order of the district court of May 14, 1909, is warranted by the considerations presented upon the second hearing.
The district court is authorized, "in its discretion and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect." Rev. Codes 1905, Sec. 6884. In New York, Wisconsin, Vermont, California, Indiana, North Carolina, and several other states statutes in terms exactly or substantially similar to this have been in force for many years; and the courts of these states are in substantial agreement in a general view of the spirit in which they are to be administered, which may be thus expressed: "That the statutes are remedial in character, intended to furnish a simple, speedy and efficient means of relief in a most worthy class of cases; that the 'discretion' referred to is not a mental discretion to be exercised ex gratia, but is a legal discretion, to be exercised in conformity to law." Freeman on Judgments (4th Ed.) Sec. 106. Or, in other words, it is a "legal discretion" which as declared by Chief Justice...
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