Huwe v. Singer

• Decision Date: 19 March 1954
• Docket Number: No. 7411,7411
• Citation: 63 N.W.2d 399
• Parties: HUWE v. SINGER et al.
• Court: North Dakota Supreme Court

Page 399

63 N.W.2d 399

HUWE v. SINGER et al.

No. 7411.

Supreme Court of North Dakota.

March 19, 1954.

Syllabus by the Court.

1. Where in an action to quiet title a judgment has been entered on default upon constructive service and an unknown defendant makes application that the judgment be vacated and he be allowed to answer, he must present to the court a positive affidavit of merits showing reasonable diligence in presenting the application to vacate after knowledge of the judgment and a meritorious defense, together with a proposed, verified answer.

2. Such affidavit must be made by the applicant himself or someone having personal knowledge of the facts in the case. If not made by the applicant a good and sufficient reason therefor must be set forth.

Dean Winkjer, Williston, Roy L. Sanford, Minneapolis, Minn., for appellants.

E J. McIlraith, Minot, for respondents.

GRIMSON, Judge.

This matter comes before the court upon an appeal from an order denying an application to vacate a default judgment, and for leave to answer. It appears that an action to quiet title to the Southeast Quarter (SE 1/4) of Section Twenty-five (25) and the Northeast Quarter (NE 1/4) and the Southwest Quarter (SW 1/4) of Sec. Twenty-six (26), and the Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4) of Sec. Thirty-four (34), Township One Hundred Sixty-three (163), Range Ninety-five (95), Divide County, North Dakota, was commenced on the 23rd day of May 1951. Service was made by publication upon all the unknown defendants as well as some of the named defendants. No answer or appearance was made by any of the defendants. Judgment was entered by default on the 10th day of December 1951, quieting title in the plaintiff. On the 28th day of November 1952 an affidavit of merits and a verified answer alleging plaintiff's title was based on defective tax proceedings were presented to the court on behalf of Dougald F. Kennedy and Leah Berglund, claiming to be owners of a part interest in the Northeast Quarter (NE 1/4) of Section Twenty-six (26), Township One Hundred Sixty-three (163), Range Ninety-five (95), and to come under the classification of unknown defendants. Upon that affidavit and answer an order was issued by the court on that day directing the plaintiff to show cause on the 8th day of December 1952, at 2 o'clock P.M., 'why the judgment in the above entitled action should not be vacated and the defendants authorized to enter an answer.' In response thereto a return to the order to show cause was made by the attorney for the plaintiff, who was also a party in interest, claiming matters in avoidance of the defective tax proceedings so that the suggested answer would have no effect on the ultimate determination of the action. A hearing was had and briefs filed on behalf of both sides. The district court thereupon denied the application, and from that denial this appeal is taken.

These proceedings are brought under Section 32-1713, NDRC 1943, which reads as follows:

'A defendant in an action to determine adverse claims, proceeded against by name or as an unknown party, 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 representatives 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.'

This court has on numerous occasions passed on the requirements of an application for opening a default judgment. While many of those cases have been under the general statute, Section 28-2901, NDRC 1943, the procedure is the same and the principles regarding the diligence in seeking the opening of a judgment and the necessity of a sufficient cause are the same. The burden is on the applicant to show diligence in seeking relief and to show good cause for opening the judgment. Wheeler v. Castor, 11 N.D. 347, 92 N.W. 381, 61 L.R.A. 746; Hart v. Hone, 57 N.D. 590, 223 N.W. 346.

In order to do that this court has from early statehood held that an affidavit of merits, together with a verified answer must be presented by the applicant. In Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151, this court held: 'On motion by defendant to be relieved from a judgment entered against him because of his default, he must present an affidavit of merits as well as a verified answer, or his motion must be denied.' Gauthier v. Rusicka, 3 N.D. 1, 53 N.W. 80; Sargent v. Kindred, 5 N.D. 8, 19, 63 N.W. 151; Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Wheeler v. Castor, 11 N.D. 347, 92 N.W. 381, 61 L.R.A. 746; Racine- Sattley Mfg. Co. v. Pavlicek, 21 N.D. 222, 130 N.W. 228; Warren v. Resaake, 54 N.D. 65, 208 N.W. 564.

In this affidavit facts must be stated positively. Allegations merely on information and belief are not sufficient. 31 Am.Jur., Judgments, Sec. 783, p. 313; Anno.L.R.A.1916F, p. 848; Columbus Mutual Life Ass'n v. Plummer, 86 Ill.App. 446; Jenkins v. Gamewell Fire Alarm Co., 3 Cal.Unrep. 655, 31 P. 570; Superior Consol. Land Co. v. Dunphy, 93 Wis. 188, 67 N.W. 428. The affidavit should be made by the defendant or one having personal knowledge of the facts. People's Ice Co. v. Schlenker, 50 Minn. 1, 52 N.W. 219. If not made by applicant a good and sufficient reason must be set forth to show why the party himself does not make it. Davis v. Solomon, 25 Misc. 695, 56 N.Y.S. 80, 28 Civ.Proc.R. 420; Bailey v. Taaffe, 29 Cal. 422; Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252.

In the case at bar the affidavit of merits is made by an attorney for the applicants. No reason is assigned why the applicants themselves do not make the affidavit. The attempted showing of diligence in making this application after discovering the judgment is based on the information from one of the parties. It does say that the affiant has examined an abstract of title to the NE 1/4 of Sec. 26, Tp. 163, R. 95, Divide County, and found one John Michael to be the record owner thereof. Then the affiant states the interest of these applicants in that property entirely on information and belief. Clearly the affiant had no personal knowledge thereof.

The affiant does say that he 'examined the files of the Auditor of said Divide County with reference to the tax deed proceedings upon which plaintiff's cause of action is founded, and that affiant believes the proceedings are fatally defective for the reasons set forth in the answer of Dougald F. Kennedy and Leah R. Berglund, attached hereto and made a part of this affidavit, and that affiant has advised the said Dougald F. Kennedy that in his opinion they have a valid and meritorious defense to the complaint herein.'

In the proposed answer which is made a part of the affidavit the defense of the applicant is based upon...