Colean Manufacturing Company v. Feckler
| Decision Date | 18 July 1907 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes county; Burke, J.
Action by the Colean Manufacturing Company against M. L. Feckler and others. From that portion of an order imposing costs as a condition to vacation of the default judgment against plaintiff, he appeals.
Modified.
Order modified.
Turner & Wright, for appellant.
Parks & Olsberg, for respondents.
This is an appeal from that portion of an order made by the district court of Barnes county on January 2, 1907, imposing term costs of $ 100 on plaintiff as a condition to the vacation of a default judgment theretofore taken against the plaintiff; appellant's contention being that this portion of the order was an abuse of discretion. The facts, as stated in appellant's brief and conceded to be correct by respondents' counsel, are as follows: On December 22d being a regular day of the December term, the case was called for trial and defendants appeared in person and by their attorneys, Parks & Olsberg. The plaintiff did not appear either in person or by attorney, and a jury was impaneled and sworn to try the cause, and the jury returned a verdict in favor of the defendant, and judgment was ordered and entered thereon against plaintiff in the sum of $ 61.45, costs and disbursements. On December 26th, on application of plaintiff's counsel, an order was issued by the district court requiring defendants to show cause on December 27th, at 10 o'clock a. m., if any they had, why plaintiff should not be relieved from the judgment taken against it. Upon the hearing of such order to show cause the order complained of was made. Plaintiff's counsel, Turner & Wright, reside in the city of Fargo. This firm were attorneys in eight cases upon the calendar of this December term of said court, of which five, including the case at bar, were jury cases, and they were ready for trial in each of said cases. A day or two before the opening of said term, Mr. Wright, the member of said firm having charge of these cases, wrote the state's attorney of said county relative to the time which would probably be consumed in the trial of criminal cases, and was informed that such cases would be moved for trial at the opening of the term and disposed of as rapidly as possible. Fourteen criminal cases appeared on said calendar. On December 14th, Mr. Wright proceeded to Valley City, where he remained on other business until the evening of December 15th. While there he was informed by the trial judge that the criminal calendar would be completed by Saturday evening, December 15th. Mr. Wright returned to Fargo after being informed that there were set cases for the following Monday which would probably occupy several days in the trial thereof; but to be doubly sure, on Sunday, December 16th, he called the trial judge over the telephone and was informed by him that these cases would occupy at least three days. He at that time stated to the judge that he desired to try his cases at that term of court, and desired only that he have notice and an opportunity to get to Valley City to try them. The judge acquiesced in this arrangement. On December 19th Mr. Wright called the clerk of said court over the telephone for information as to the state of the calendar and was informed that the set cases mentioned would be followed by a civil action for libel which would probably consume about three days. On Thursday, December 20th, this firm were notified that three of their other cases might be reached for trial on the following day. Thereupon Mr. Wright notified his witnesses in these cases, as well as in the case at bar, to be at Valley City Friday morning; Mr. Wright going to Valley City Thursday evening. Upon his arrival there he was informed by the trial judge that none of his jury cases had been set for trial. Mr. Wright, however, remained in Valley City that night and attended court during the forenoon of Friday, December 21st, and had with him his witnesses ready for the trial of the case at bar. About 11 o'clock in the forenoon he informed the trial judge that he could leave for Fargo in about twenty minutes, as a train was due to depart at that time, and he inquired if there was any possibility of any of his cases being reached, either on that day, Friday,...
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