Gilbreath v. Teufel

• Decision Date: 15 February 1906
• Citation: 107 N.W. 49,15 N.D. 152
• Court: North Dakota Supreme Court

107 N.W. 49

15 N.D. 152

J. D. GILBREATH v. MARGARET TEUFEL, G. CHRISTIAN KLINK, ET AL

Supreme Court of North Dakota

February 15, 1906

Appeal from District Court, Morton county; Winchester, J.

Action by L. D. Gilbreath against Margaret Teufel and others. Judgment for plaintiff, and defendants appeal.

Reversed.

Order reversed. Judgment vacated. Appellants recovered costs of this appeal.

W. H Stutsman, for appellant.

Nuchols & Murphy, for respondents.

OPINION

ENGERUD, J.

This is an action to determine adverse claims to real property commenced and prosecuted to judgment under the provisions of chapter 30 of the Code of Civil Procedure (Rev Codes 1899, section 5904 et seq.), as amended by chapter 5 page 9, Laws of 1901. Judgment by default was entered in plaintiff's favor December 7, 1903. The appeal is from an order denying appellant's application after judgment for leave to answer and defend the action.

On December 2, 1904, appellants served notice on plaintiff's attorneys that an application would be made to vacate the judgment, and for leave to answer, and also that application would be made for an order to show cause why the motion should not be heard and the relief granted on less than eight days' notice. On the same day an order was obtained returnable December 5, 1904, requiring the plaintiff to show cause why the relief asked for should not be granted, and the motion therefor heard on less than eight days' notice. The order, together with the affidavit and the proposed answer, was served on plaintiff's attorneys December 2d, and service admitted. On the return day the plaintiff appeared by counsel in opposition to the motion and presented a counter affidavit. After hearing both parties, the court made the order appealed from, which, after sundry former recitals, reads as follows: "The court further finds, as conclusions of law, that applicants have not shown such diligence in making their application in time so that the required eight days' notice might be given of the hearing of said motion before the expiration of one year from the entry of the judgment in said action, as would move the court to exercise its discretion in favor of the prayer of applicants. Therefore it is ordered that the application to shorten the time as prayed be not granted, and the order to show cause is hereby discharged, with $ 10 motion costs to plaintiff's attorneys."

It is apparent from the record that it was considered in the court below that the propriety of permitting the motion to be heard on less than eight days' notice was one of the questions involved on the hearing pursuant to the order to show cause, as well as the merits of the motion. This was plainly a misconception of the question before the court, as well as of the office of an order to show cause. The latter was merely a means of bringing the motion before the court on less than eight days' notice. Whether such an order shall be granted or not is a discretionary matter which is decided on the applicant's ex parte showing. After the court has thus permitted a motion to be heard on less than the usual notice, the motion is as fully before the court on its merits as if the full eight days' notice had been given. If it shall appear on the hearing that the adverse party has not had sufficient time to prepare for the hearing, his rights can be amply protected by a continuance, if necessary. Although the order appealed from is ambiguous, and might be construed as one merely quashing the order to show cause on the ground that it was improvidently issued and hence was not a denial of the appellant's motion on the merits, it is quite evident from the whole record that it was intended to be and was in fact a final order on the merits of the motion, which would bar another application for the same relief. That this was the effect of the order is evident from the fact that the record shows that the opinion prevailed in the court below that the appellants were entitled to no relief unless the motion to vacate the judgment was heard within one year after the entry of the judgment. It was for this reason the order to show cause was applied for and granted, and made returnable before the expiration of the year; and the motion to vacate was denied, as disclosed by the order appealed from, because the moving party had "not shown such diligence in making the application in time so that the required eight days' notice might be given of the hearing of said motion before the expiration of one year from the entry of the judgment." No objection was made to the hearing of the motion at the time fixed by the order to show cause on the ground that the plaintiff had not had sufficient time to prepare therefor. The plaintiff presented a counter affidavit and the merits of the motion were fully presented. For these reasons we must construe the order as a final one denying appellant's motion on the merits.

The facts which we deem material to the application are undisputed. The appellants are the heirs of Christian Teufel and G....