Harris v. Hessin

• Decision Date: 06 November 1915
• Citation: 32 N.D. 25,155 N.W. 41
• Parties: HARRIS v. HESSIN.
• Court: North Dakota Supreme Court

32 N.D. 25

155 N.W. 41

HARRIS

v.HESSIN.

Supreme Court of North Dakota.

Nov. 6, 1915.

Syllabus by the Court.

The refusal of the trial court to vacate a default and permit a trial on the merits, under the facts stated in the opinion was an abuse of discretion.

Appeal from Ward County Court; Wm. Murray, Judge.

Action by A. C. Harris against Ed. Hessin. From judgment for plaintiff, defendant appeals. Reversed.Paul Campbell, of Rugby, and H. S. Kline, of Havre, Mont., for appellant. Palda, Aaker & Greene and I. M. Oseth, all of Minot, for respondent.

GOSS, J.

Appellant sought relief in the lower court from a judgment taken against him by default. The record on this appeal presents a review of the decision of the lower court upon this issue. The matter has been here before. An opinion upon practice questions was written in Harris v. Hessin, found in 30 N. D. 33, 151 N. W. 4. Therein a remand was ordered, and the case is now here upon the former record, supplemented by the depositions of the county judge and clerk of the county court, since taken, and certain affidavits. All questions of law involved have been heretofore settled in this jurisdiction.

It can be assumed for the purpose of this decision that the particular continuance in question had was taken to May 5, 1914, instead of May 8th, as contended by appellant. Briefly recited the facts are that the case was at issue on the pleadings, and had been set on peremptory call for trial for March 12, 1914, upon which date a continuance was granted to April 8th to enable the deposition of the defendant to be taken and be presented. On April 8th a postponement was asked by the plaintiff and concurred in by the defendant, who requested and secured a further continuance to April 22d, because the defendant's deposition had not arrived. This deposition arrived before April 22d. Plaintiff filed written objections thereto on said date, which objections were well taken, and necessitated defendant either going to trial without the deposition and his defense on the merits, or his obtaining a further continuance to enable the retaking of said deposition in proper form. Defendant thereupon applied for a third continuance, and was granted it upon his payment of $25 terms, which was paid in open court, and the case was orally declared to be continued. The date to which this continuance was granted, or understood to have been granted, is the all-important circumstance. The facts concerning it are not in substantial dispute. It is apparent that both parties are and have been in good faith in their respective understanding as to the date for trial, as their actions concerning it are and have been entirely consistent with their belief in the matter. Plaintiff and respondent understood that the cause was continued to May 5, 1914, the first day of the May term. Defendant and appellant in good faith understood and believed the continuance to have been to May 8, 1914. No record was made at the time of the date to which continuance for trial was granted. A record was subsequently made by interlineation reciting that the “case was continued to the first day of the May term on May 5, 1914.” This record was made by the clerk on direction of the judge, but not until after defendant had applied to be relieved from said default. Plaintiff appeared on May 5th, submitted proof, and judgment was awarded thereon, with defendant defaulting. But no formal order for judgment was applied for or given until after defendant's application to be relieved had been ruled upon. That no order for judgment was obtained and no judgment caused to be entered during this interval would appear to be conclusive proof that plaintiff's attorneys were not endeavoring to procure a judgment by default, but relied instead upon their understanding that the case had been continued to the first day of the May term. That the court entertained the same belief is equally apparent; otherwise it would have refused the proof and kept the case open to a later date. But that defendant likewise acted in the utmost good faith is certain from his conduct. Without notice of his either actual or supposed default, counsel appears in court, having traveled some 60 miles to be present. The second deposition had arrived May 7th, and counsel appeared ready for trial May 8th. Other matters of conduct during said period intervening all concur to establish said counsel's good faith, and that the default, if any, was unintentional, as well as unknown until May 8th, and occurred through his actual mistake and under a situation refuting any bad faith. And such is the situation that must have been apparent to the lower court arising upon defendant's application to be relieved. By counsel's mistake and inadvertence, and without any fault of defendant, who has been most diligent, he has been denied a trial. To have granted the application would have been no denial of justice to plaintiff, but, at the most, only a short delay in trial, with monthly terms of court following. Besides, in the instant case there is present a valid reason for the continuance granted April 22d, viz., necessity for defendant's deposition, and without which in all probability defendant's counsel could not hope to prevail, and without which, had his counsel willingly proceeded to trial, he might have been guilty of carelessness, or worse, in the care of his client's interests. Then, too, $25 terms was exacted and paid for the short continuance granted. Defendant must have been admonished thereby that any future unnecessary delinquency on his part would not be tolerated. Under these circumstances it is impossible to believe that these terms were paid with any present intention on the part of his counsel to shortly thereafter default in the defense. An additional strong circumstance tending to excuse the default is that no unreasonable...