Kozak v. Ashbridge
| Decision Date | 21 December 1928 |
| Docket Number | No. 5610.,5610. |
| Parties | KOZAK v. ASHBRIDGE. |
| Court | North Dakota Supreme Court |
Where a party moves the court to vacate and set aside a default judgment because of mistake, surprise, or excusable neglect, it is essential that the moving papers be accompanied by an affidavit of merits.
Where an order setting aside such a judgment is based upon a record where there is no affidavit of merits in any form, the order will be reversed.
Appeal from District Court, Burleigh County; Fred Jansonius, Judge.
Action by Henry Kozak against Adrien R. Ashbridge. From an order vacating and setting aside a default judgment theretofore rendered, plaintiff appeals. Reversed.Allen & Engeseth, of Bismarck, for appellant.
William Langer, of Bismarck, for respondent.
This is an appeal from the order of the district court vacating and setting aside a default judgment. The summons and complaint were served upon the defendant on February 2, 1928. Defendant failed to appear, and judgment by default was taken on March 10. Three days afterwards an execution was issued. On March 16 the defendant submitted an answer to the counsel for the plaintiff, and asked him to admit service thereon, which request was refused. Counsel for plaintiff claims that this proposed answer was dated March 15, 1928, and is the same answer as was tendered by the plaintiff on the application to vacate and set aside the judgment. On April 10, the defendant served notice of motion to vacate and set aside the judgment, basing the same upon the affidavit of the counsel for the defendant and of counsel's stenographer tending to show mistake, surprise, inadvertence, and excusable neglect. Neither of these affidavits sets forth the facts in the case so as to constitute an affidavit of merits, and there is no affidavit from the defendant himself. With the notice of motion was served the proposed answer, verified by counsel for the defendant on information and belief.
The motion was resisted by the plaintif, who submitted the affidavit of his counsel, showing that all of the papers served upon him on this motion were the affidavit of defendant's counsel, William Langer, Ethel Mills, the stenographer, and the proposed answer.
The motion was heard on this record on April 30, and on June 8 the court granted the motion, making and entering an order to the effect that the judgment heretofore entered in the above-entitled action be vacated and set aside upon the payment of $20 costs, and upon the further condition This order was served upon plaintiff on September 18, 1928, the terms refused, and an appeal taken.
The appeal sets forth four specifications of error, one of which is “that the court erred in setting aside and vacating the default judgment in said action for the reason that no proper and sufficient statutory showing was made by the defendant and respondent to justify the court in setting aside the default judgment.”
The principal argument on this specification is that there was no affidavit of...
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