Hart v. Hone

• Decision Date: 18 February 1929
• Docket Number: No. 5533.,5533.
• Citation: 57 N.D. 590,223 N.W. 346
• Parties: HART v. HONE et al.
• Court: North Dakota Supreme Court

57 N.D. 590

223 N.W. 346

HART

v.HONE et al.

No. 5533.

Supreme Court of North Dakota.

July 27, 1928.

Rehearing Denied Feb. 18, 1929.

Syllabus by the Court.

Under section 8156, C. L. 1913, which provides that “a defendant in an action to determine adverse claims * * * upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise,” it is incumbent upon a defendant, who seeks to have a default judgment vacated and to be permitted to defend, to show prima facie, by his moving papers, that he has a good and meritorious defense; and, where he tenders a verified answer and such answer fails to set forth facts constituting a defense on the merits, the trial court commits no error in denying the application to open the judgment.

An averment in an answer in a statutory action to quiet title, that the proceedings had under chapter 199, Laws 1925 (under which plaintiff's vendor acquired a tax deed to the real property in controversy), “are in all things invalid and failed to create any estate or interest,” is a mere conclusion of law, and does not set forth facts showing invalidity of the tax deed.

Certain averments in the proposed answer considered, and held not to show that the plaintiff was inhibited from purchasing the premises in controversy from a county which had acquired title thereto under tax deed.

Appeal from District Court, Grant County; Berry, Judge.

Action by W. A. Hart against Zarhariah T. Hone, William J. Nesler, and others. Judgment for plaintiff, and, from an order denying an application by defendant last named to reopen judgment, such defendant appeals. Affirmed.

W. H. Stutsman, of Mandan, for appellant.

CHRISTIANSON, J.

Plaintiff brought this action under chapter 31 of the Code of Civil Procedure (sections 8144-8165 C. L. 1913) to quiet title to a quarter section of land in Grant county in this state. In addition to certain named defendants, there was also named as parties defendant “all other persons unknown, claiming any estate or interest in, or lien or incumbrance upon, the property described in the complaint.” Comp. Laws 1913, § 8148. Personal service was made upon the named defendants, and service was made by publication upon the unknown parties defendant in conformity with the provisions of section 8150, C. L. 1913. All the defendants made default, and the action came on to be heard before the district court of Grant county on October 29, 1927. The district court made findings of fact and conclusions of law and order for judgment in favor of the plaintiff. The findings of fact were in effect that the county of Grant had obtained a tax deed for the tract of land described in the complaint on June 15, 1927, upon delinquent taxes for the year 1922; that said tax deed was obtained and executed in conformity with the statutes in such cases made and provided; that the plaintiff subsequently purchased said land from the county of Grant; and that said county, acting by and through its officers, executed and delivered a deed conveying said tract of land to the plaintiff. On November 2, 1927, judgment was entered in accordance with the findings, conclusions, and order for judgment.

On January 28, 1928, the appellant, William J. Nesler, made application, pursuant to notice, that the judgment be opened, and that he be permitted to appear and defend in the action. In support of the motion, he submitted his own affidavit and the affidavit of his counsel and a proposed answer verified by himself.

The answer denies that the plaintiff was the owner of the land described in the complaint, and alleges that he (William J. Nesler) is the owner and holder of a mortgage upon said land, executed and delivered by one Hone, the then record owner on December 14, 1922. The answer further alleges, upon information and belief, that, by reason of nonpayment of the 1922 taxes upon said land, “certain proceedings were had whereby the county of Grant attempted to acquire title to said land under and pursuant to the terms and provisions of Session Laws 1925, c. 199, and to sell the same as property of Grant county at public auction on the 14th day of June, 1927.” It further alleges that on that date the plaintiff was the president of the First State Bank of Carson, “which bank had for four years then last past acted as defendant's agent in connection with said mortgage and in collecting the interest thereon, and in remitting said interest to defendant,” and that said bank had a second mortgage in the sum of $1,387.13 and a third mortgage in the sum of $225 on said land, and that the plaintiff as well as the vice president of the bank knew that the defendant Nesler was the owner of the first mortgage. The answer further alleges that whatever title plaintiff has or asserts against the land is based upon said tax proceedings; namely, the title procured by Grant county and conveyed by the county to the plaintiff. And it is alleged:

“That said proceedings are in all things invalid and fail to create any estate or interest in or lien or incumbrance upon said land superior to the lien of defendant, excepting that defendant may be required to pay said taxes, together with proper penalties and interest, as condition of removing the lien of such taxes from said land, which defendant stands ready and willing to do whenever the court shall so direct.”

The affidavit of the defendant Nesler contains the following averment:

“That the affiant says that he has fully and fairly stated all the facts to his counsel, the said W. H. Stutsman, and is advised by him that he has a valid and substantial defense on the merits to the cause of action alleged in the complaint, and he verily believes the same to be true, and that such defense on the merits is fully set forth in the verified answer attached to this affidavit.”

Certain counter affidavits were submitted. The trial court, after hearing and due consideration, entered an order denying the application of the defendant Nesler to reopen the judgment and for leave to answer, and he appeals from such order.

The laws of this state relating to relief from default judgments are embodied in sections 7483 and 8156, C. L. 1913. So far as material here, they read:

“Sec. 7483. The court may * * * in its discretion and upon such terms as may be just at any time within one year after notice thereof, relieve a party from a judgment * * * taken against him through his mistake, inadvertence, surprise or excusable neglect. * * *”

“Sec. 8156. A defendant in an action to determine adverse claims, proceeded against by name or as an unknown party or heir, or his representative on application and sufficient cause shown at any time before trial, must be allowed to defend on such terms as may be just; and any such defendant or his representative upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.”

It is the contention of the appellant that section 8156 alone is applicable in actions to quiet title, and that this section provides a different rule from that prescribed by section 7483, supra. It is asserted that under section 8156, supra, it is not necessary for the applicant to show mistake, inadvertence, surprise, or excusable neglect, and that, upon timely application within one year after the rendition of the judgment, a defendant who has defaulted is entitled to have the judgment opened and to be permitted to defend as a matter of right. In support of this contention, appellant cites Gray v. Lawlor, 151 Cal. 352, 90 P. 691, 12 Ann. Cas. 990. We find it unnecessary to enter into an extended discussion of the contentions thus advanced. Gray v. Lawlor involved statutory provisions wholly different from section 8156. That case involved a provision which read: “When from any cause the summons in an action has not been personally served on the defendant,” etc. In a word, that case involved a statute providing for relief against default judgments in all cases where the judgment was based on constructive service of the summons. Section 8156 is not restricted to such cases; it applies to all cases in which judgments have been rendered by default in statutory actions to quiet title. It applies as well where a named defendant has been personally served with process as where an unknown defendant has been served by publication.

[1] On an application to be relieved from a default judgment, the court will consider every fact and circumstance that has any reasonable bearing on whether sufficient cause has been shown why the judgment should be vacated. Hence the court will of necessity consider the mode of service. Where there has been personal service, the defendant is charged with actual knowledge of the institution of the...