First Nat. Bank of Crosby v. Bjorgen, 11138
| Decision Date | 19 June 1986 |
| Docket Number | No. 11138,11138 |
| Citation | 389 N.W.2d 789 |
| Parties | FIRST NATIONAL BANK OF CROSBY, Plaintiff and Appellee, v. Lyle BJORGEN, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Bjella, Neff, Rathert, Wahl & Eiken, Williston, for plaintiff and appellee; argued by Charles L. Neff.
Rolfstad, Winkjer, McKennett & Stenehjem, Williston, for defendant and appellant; argued by Kent Reierson.
Lyle Bjorgen, the defendant, appeals from a district court order dismissing his motion to set aside the partial summary judgment pursuant to Rule 60(b), N.D.R.Civ.P. We affirm.
On January 10, 1983, Bjorgen executed a note in favor of First National Bank of Crosby in the amount of $90,000. To secure this note Bjorgen executed a mortgage covering the following described real estate located in Divide County, North Dakota:
"All of Mortgagors interest in the oil, gas and minerals in and
under the following property:
This note was also secured by a security agreement covering a 1982 Lincoln Mark VI Continental four-door automobile and a 1982 Datsun 200 SX two-door automobile. 1 On February 18, 1983, Bjorgen executed another note in favor of the Bank in the amount of $10,000. This note was also secured by the above mortgage and security agreement. Both of these notes were due December 15, 1983.
On August 29, 1983, the Bank filed, and on September 7, 1983, had served upon Bjorgen, a complaint alleging that "[a]lthough plaintiff has demanded, defendant has refused and continues to refuse to pay plaintiff ... the sum of One Hundred Thousand and no/100 Dollars ($100,000.00)" and, therefore, judgment should be entered against the defendant for the sum of $100,000. The Bank also filed and served a motion for a writ of attachment pursuant to Section 32-08.1-03(1)(a), (b), (c), and (e), N.D.C.C. 2 This writ of attachment was granted by the district court on August 30, 1983.
Bjorgen answered the complaint by alleging that the notes in question had not yet become due and counterclaimed for damages allegedly incurred by Bjorgen "as a result of unlawful and unreasonable action of the Plaintiff in instituting an action to collect notes not yet mature, and not insecure."
On January 16, 1984, the Bank served, and on January 19, 1984, filed a motion to amend the complaint pursuant to Rule 3.2, NDROC, alleging that the notes in question had become due but had gone unpaid. Bjorgen did not respond to this motion. The Bank also informed Bjorgen of its intent to make a motion for summary judgment at a hearing which was subsequently scheduled and held on April 9, 1984. After considering affidavits, receiving briefs, and hearing oral arguments the court granted, on April 7, 1984, the Bank's motion to amend the complaint, and on April 10, 1984, its motion for summary judgment. Judgment was entered in favor of the Bank in the amount of $118,579.45 on May 4, 1984, and notice of the entry of judgment and certified copy of the judgment were served on Bjorgen's attorney on May 30, 1984.
In support of his resistance to the Bank's motion for summary judgment, Bjorgen argued that the Bank's premature action against the notes was unreasonable and unlawful and "made it impossible for the defendant to pay the notes when they did become due." The court, however, concluded that Bjorgen's counterclaim for damages incidental to the issuance of the writ of attachment should be severed and addressed in a separate trial. 3
On September 14, 1984, a writ of execution was issued by the clerk of the district court. The sheriff of Divide County then levied upon the attached personal property of Bjorgen which included 10,000 shares of stock in the Bank. This stock was sold for the amount of $17,000 and applied to partially satisfy the judgment. The sheriff next levied upon the following property of Bjorgen previously attached by the Bank:
"Township 163 North, Range 103 West, 5th P.M. Section 2: SW 1/4NW 1/4, Lots 2, 3 and 4" This property 4 was sold to the Bank at sheriff's sale on November 27, 1984, for the amount of $324,265.12. The sheriff disbursed the proceeds of the sale as follows:
"Remaining amount of the judgment
plus interest to date of sale upon
the judgment debt $111,069.94
Fees for the publication of notice of sale 73.95
Cost of land appraisal 375.00
Payoff of first lien held by Farmers
Home Administration 212,740.23
Fees of clerk of court to issue special
execution 6.00
------------
Total amount due plaintiff $324,265.12
Sheriff's fees 25.00
------------
Total judgment, interest and costs $324,290.12
Less credit for escrow payment held
by bank $ 2,520.00
------------
Amount of bid $321,770.12"
------------
The trial court entered an order confirming the sale on July 30, 1985.
At no time during any of these proceedings before the district court or during the levy upon and execution sale of the personal and real property did Bjorgen assert that the Bank's action controvened Section 32-19-07, N.D.C.C.
However, on October 15, 1985, more than 17 months after the judgment was entered and more than 10 months after the sheriff's sale of the afore described property, Bjorgen, through a new attorney, filed a motion to set aside the partial summary judgment pursuant to Rule 60(b)(iv) and (vi), N.D.R.Civ.P. In his brief in support of the motion, Bjorgen argued that the Bank's initial action was not proper because it was maintained on the notes instead of the real estate mortgage which Bjorgen alleged violated Section 32-19-07, N.D.C.C. 5 Bjorgen further argued that as the action maintained by the Bank was in violation of 32-19-07, it should be set aside as void pursuant to 60(b)(iv). Bjorgen cited H & F Hogs v. Huwe, 368 N.W.2d 553 (N.D.1985) and State Bank of Burleigh County Trust v. Patten, 357 N.W.2d 239 (N.D.1984) as supportive authority for his argument. Bjorgen also argued that the Bank did not adequately comply with Rules 77(d) and 15(a), N.D.R.Civ.P., and Section 32-08.1-03(3), N.D.C.C.
The district court denied Bjorgen's motion to set aside the partial summary judgment. 6 Bjorgen's appeal is from the district court's order dismissing his motion to set aside the partial summary judgment.
On appeal several arguments have been raised by both parties including the proper interpretation of Section 32-19-07, N.D.C.C., and its applicability to the case at hand.
The Bank first presents the issue of "WHETHER THE PRESENT APPEAL IS IMPROPER AS AN ATTEMPT TO CONSIDER AND LITIGATE AN ISSUE NOT HERETOFORE RAISED BY APPELLANT AND NOT CONSIDERED BY THE DISTRICT COURT." The Bank argues that, as Bjorgen did not raise the anti-deficiency provisions of 32-19-07 in his answer to the complaint or at any time during the proceedings on the motion for summary judgment, it cannot now be raised on appeal. This appeal, however, is not taken from the judgment granting the Bank's motion for summary judgment, it is taken from the order denying Bjorgen's motion to set aside the partial summary judgment. It cannot be seriously questioned that the issues raised here on appeal by Bjorgen were also raised by Bjorgen when the district court considered Bjorgen's motion to set aside the partial summary judgment. Accordingly, we conclude that those issues are properly before our Court.
We next consider whether or not the district court erred in refusing to grant Bjorgen's motion to set aside the partial summary judgment.
The first argument made by Bjorgen, and the one most heavily relied upon by Bjorgen, is that the summary judgment should have been set aside as void pursuant to Rule 60(b)(iv), N.D.R.Civ.P. A motion under subdivision (iv), unlike a motion under the other five subdivisions of Rule 60(b), is not left to the court's discretion. State Bank of Burleigh County Trust v. Patten, 357 N.W.2d 239, 242 (N.D.1984); State v. Red Arrow Towbar Sales Co., 298 N.W.2d 514, 516 (N.D.1980). The court's task is purely to determine the validity of the judgment. Red Arrow, 298 N.W.2d at 516. If the judgment is valid, the subdivision (iv) motion must be denied, but if the judgment is void, the court has no discretion to protect it. Patten, 357 N.W.2d at 242; Red Arrow, 298 N.W.2d at 516. The question which must be resolved, therefore, is whether or not the summary judgment issued by the district court was void as a matter of law.
Bjorgen argues that the judgment is void because the district court lacked subject matter jurisdiction over the claim. Any judgment entered without the requisite jurisdiction over the parties is void. Red Arrow, 298 N.W.2d at 516. No issue has been raised over the jurisdiction of the parties. We note at the outset that our Court held, before the enactment of 27-07.1-17(8), N.D.C.C., expanding the jurisdiction of county courts, that district...
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