Hauser v. Security Credit Company, a Corp.

• Decision Date: 18 March 1936
• Docket Number: 6385
• Citation: 266 N.W. 104,66 N.D. 399
• Court: North Dakota Supreme Court

266 N.W. 104

66 N.D. 399

JACOB F. HAUSER, Oscar Hauser and Fritz Hauser, Respondents, v. SECURITY CREDIT COMPANY, a Corporation, Mandan, North Dakota, Appellant

No. 6385

Supreme Court of North Dakota

March 18, 1936

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

Action by Jacob F. Hauser and others against the Security Credit Company, for the recovery of money only. From an order vacating and modifying an order for the dismissal of the action that was made pursuant to and in accordance with the terms of a written stipulation, defendant appeals.

Reversed.

Syllabus by the Court.

1. This action was instituted for the recovery of money only upon six different causes of action. The last four causes of action are predicated upon claims alleged to have been assigned to the plaintiffs for value. The plaintiffs and defendant made settlement and entered into a written stipulation that the action be " dismissed with prejudice to the starting of another action on the matters involved in the complaint." Upon such written stipulation (signed by all the parties to the action) the trial court entered an order " that the above-entitled action be and the same is dismissed with prejudice." Thereafter the attorney who had brought the action for the plaintiffs moved that such order be set aside and modified so as to provide that as regards the last four causes of action set forth in the complaint the dismissal be without prejudice to the bringing of another action. An order was made granting such motion. It is held:

(a) That such order is one which " involves the merits of an action," within the meaning of subdivision 4, § 7841 C.L.1913, and hence is appealable under such section.

(b) That the trial court erred in making such order.

2. The subject-matter of litigation is at all times under the exclusive control of the parties, and the parties to an action have a right to settle their case independently of their attorneys.

3. When the parties to an action for the recovery of money only make settlement, and enter into a written stipulation that the action be dismissed with prejudice to the commencement of another action, they are entitled to have such settlement recognized by the court in which the action is pending to the extent of having an order made disposing of the case according to the settlement.

Simpson Mackoff & Kellogg, for appellant.

As a general rule all parties to a judgment should be made parties to a proceeding to vacate or open it. A merely nominal party need not be joined. 34 C.J. 344.

The inherent jurisdiction of a court to vacate its void judgments does not authorize it to act without notice to the parties even for the purpose of clearing its records of void judgments. 15 R.C.L. 700; Day v. Goodwin, 104 Iowa 374, 73 N.W. 864, 65 Am. St. Rep. 465.

A party whose claim to property fails, and whose rights are not affected by an erroneous decree, is not entitled to have such decree set aside or modified. Pinkham v. Pinkham, 61 Neb. 336, 85 N.W. 285; Galloway v. Patzer, 58 N.D. 443, 226 N.W. 491; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Bacon v. Mitchell, 14 N.D. 454, 106 N.W. 129, 4 L.R.A.(N.S.) 244; Olson v. Mattison, 16 N.D. 231, 112 N.W. 994; Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860.

Upon an application to reopen a judgment or order, a meritorious defense or cause of action, whichever the case may be, must be pleaded. 34 C.J. 327; 15 R.C.L. 717; Taylor State Bank v. Baumgartner, 27 N.D. 606, 147 N.W. 385; Maugey v. Miller, 41 N.D. 81, 161 N.W. 735; Croonquist v. Walker, 50 N.D. 388, 196 N.W. 108.

An order setting aside a stipulation between the parties in a suit is an appealable order. Northern P.R. Co. v. Barlow, 20 N.D. 197, 126 N.W. 233; Lilly v. Haynes Co-op. Coal Min. Co. 48 N.D. 937, 188 N.W. 38; Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926.

Floyd B. Sperry, for respondents.

An order for the dismissal of an action is not an appealable order. Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371; Re Webber, 4 N.D. 119, 59 N.W. 523; Malherck v. Fargo, 49 N.D. 123, 190 N.W. 176; Hoffman v. Bank of Minot, 4 N.D. 473, 61 N.W. 1031; Larson v. Walker, 17 N.D. 247, 115 N.W. 838; Hanberg v. Bank, 8 N.D. 328, 79 N.W. 336; Field v. Elevator Co. 5 N.D. 400, 67 N.W. 147; Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148; Ellingson v. Northwestern Jobber's Credit Bureau, 58 N.D. 754, 277 N.W. 360.

In an appeal from an order vacating garnishment proceedings, the appellant must present a record identifying, by the order of certificate of the trial court, the papers or evidence presented or heard upon the hearing. Solon v. O'Shea, 45 N.D. 362, 177 N.W. 757; Harris v. Hesslin, 30 N.D. 33, 151 N.W. 4.

The authority of an attorney so far continues after final judgment that service on him of notice of a motion to vacate the judgment for fraud in obtaining it will bind his client. Beach v. Beach, 6 Dak. 371, 43 N.W. 701.

Where a judgment against joint defendant is not deemed an entirety, codefendants are not necessary parties to an application by one defendant to vacate a judgment on grounds peculiar to himself, such as lack of jurisdiction. 34 C.J. 344; Finn v. Walsh, 19 N.D. 61, 121 N.W. 766.

A subrogee has the necessary interest to procure the revocation of an order irregularly rescinding the decree by which he was subrogated. 34 C.J. 344; Schouweiler v. Allen, 17 N.D. 510, 117 N.W. 866; Campbell v. Coulston, 19 N.D. 645, 124 N.W. 689.

Christianson, J. Burke, Ch. J., and Morris, Nuessle and Burr, JJ., concur.

OPINION

CHRISTIANSON

This is an appeal from an order vacating an order dismissing an action with prejudice to the commencement of another action. The facts necessary to an understanding of the questions presented for our determination are substantially as follows:

In September, 1934, the above named plaintiffs brought this action against the above named defendant. There has been no change in parties. The complaint sets forth six different causes of action. The first two causes of action allege that the defendant made certain misrepresentations in a transaction involving the sale to the plaintiffs of certain preferred stock in the defendant company. The third, fourth, fifth and sixth causes of action set forth similar transactions between the defendant and certain other individuals not parties to the action.

It is alleged in the complaint as to each of said causes of action that after the accrual of the right of action "for a valuable consideration said claim was duly assigned to the plaintiffs herein, who are now the owners and holders thereof."

On March 7, 1935, the following written stipulation was entered into between the plaintiffs and the defendant: "It Is Hereby Agreed Between Jacob F. Hauser, Oscar Hauser and Fritz Hauser, the above Plaintiffs, and Security Credit Company, a corporation, of Mandan, North Dakota, above Defendant, that the above entitled action is hereby dismissed with prejudice to the starting of another action on the matters involved in the Complaint, and that neither party to this action shall be entitled to recover against the other party any of the costs incurred in the above case and that each party shall pay his own costs; that the Court may issue an order dismissing this case in accordance with the agreement herein contained."

The stipulation was signed by all the plaintiffs and by the defendant. It was presented to the trial court and on March 9, 1935, the court entered an order reciting:

"Upon the foregoing stipulation, It Is Hereby Ordered that the above entitled action be and the same is hereby dismissed with prejudice and without costs to either party."

Thereafter the attorney who brought this action for the plaintiffs moved the court, pursuant to notice, "that the order dismissing the above entitled action be in all things re-opened, re-considered, vacated and modified." In support of such motion the said attorney submitted his affidavit wherein, among other things, it was stated:

"That he was the attorney for the plaintiffs in the above entitled action, and now is the attorney for Peter Glass, described in the 3rd cause of action of the complaint herein; that he is the attorney for Gustav L. Schlender, executor of the estate of Adolf Schlender, referred to in the 4th cause of action herein; that he is the attorney for Helmuth H. Bohrer, described in the 5th cause of action herein, and that he is attorney for Peter Mohl, described in the 6th cause of action herein, all of which relate to the complaint in the above entitled action, and the claims therein set forth.

"That said action was brought to recover certain sums of money claimed by said parties to be owing unto them, and prior thereto, and at the request of said parties, an action was brought on said claims in the names of the above named plaintiffs. . . . That thereafter the defendant's agents entered into an arrangement with the above named plaintiffs, relating to the first and second causes of action described in said complaint, the exact details of which were not known to the affiant, but affiant is informed and believes that a loan was made by the defendant to the said plaintiffs, whereupon the said plaintiffs were induced to enter into an agreement to have said action, and all of the claims and matters referred to in said complaint, in all things dismissed; that none of the holders of the other claims referred to in said complaint agreed to said dismissal, nor was there any consideration for the dismissal of said action pertaining to said claims; that said claims were assigned to the plaintiffs, under a trust arrangement, whereby said action was to be brought in the names of said plaintiffs, the expenses proportioned, and whereupon due accounting was to be made therefor, as...