Lee v. Luckasen
| Decision Date | 29 June 1925 |
| Docket Number | No. 4886.,4886. |
| Citation | 204 N.W. 831,52 N.D. 934 |
| Parties | LEE v. LUCKASEN et al. |
| Court | North Dakota Supreme Court |
An application to vacate a judgment and court order upon the sole ground that the judgment and order are void, and which does not allege any of the statutory grounds for the vacation of judgments or orders, must be denied when judgment and order attacked are not void.
Appeal from District Court, Griggs County; Cole, Judge.
Mortgage foreclosure suit by M. J. Lee against Arne Luckasen and another. From an order vacating and setting aside an order to show cause why a decree in sale and receivership proceedings should not be annulled and set aside, defendants appeal. Affirmed.O. S. Gunderson, of Fargo, for appellants.
E. G. Larson, of Aneta, and Barnett & Richardson, of Fargo, for respondent.
This action was brought on the 28th day of September, 1922, for the foreclosure of a real estate mortgage. The summons and complaint were duly served upon the defendants, who failed to answer, and made no appearance of any kind in said action. Judgment by default was duly ordered and entered on the 17th day of February, 1923. Thereafter the mortgaged premises were sold, and the report of the sale confirmed on the 2d day of June, 1923. On the 25th day of August, 1923, the judge of the district court, upon complaint and affidavit of E. G. Larson, attorney for the plaintiff, issued an order appointing E. G. Larson temporary receiver, and providing that the defendants, and each of them, show cause before the court, on the 27th day of September, 1923, at the courthouse in the city of Fargo, at 10 o'clock in the forenoon of said day, why said receiver should not be continued in office until the final disposition of matters involved. The order to show cause was served upon the defendants on the 5th day of September, 1923. Thereafter, and on the 27th day of September, 1923, plaintiff appeared, by and through his counsel, and, the defendants failing to appear, the court appointed the said E. G. Larson receiver, to receive the crops and proceeds thereof raised upon the mortgaged lands during the year 1923, and further ordered that the defendants and each of them should turn over to the receiver all crops raised during the season of 1923, grown upon the mortgaged land in said action. On the 25th day of January, 1924, O. S. Gunderson, attorney for the defendants, filed in the district court, in said action, an affidavit, alleging that he is attorney for the defendants and that he is making the affidavit in their behalf; that the defendants executed the mortgage in said action; that owing to adverse conditions they were unable to pay the mortgage debt when due; that the summons and complaint in said action were duly served upon them; that they had no valid defense in said action and made no answer and did not appear therein; that judgment in said action was entered against them by default, and that the same was excessive in including $1,413.25 of taxes, a deficiency judgment of $586.22, and excessive attorney fees, all of which was not included in the prayer of the complaint. The said affidavit further alleged that the appointment of the receiver was illegal and void, and upon such affidavit the court duly issued its order to the plaintiff to appear before said court in the city of Fargo, on the 1st day of February, 1924, and show cause why the said judgment or decree of foreclosure should not in all things be vacated, annulled and set aside, and to show cause why the said foreclosure sale of said premises should not be declared null and void, and to show cause why the receivershipproceedings should not be annulled and set aside and the said receiver discharged. Thereafter, and on the day appointed, plaintiff appeared by his attorney and answered the affidavit of the defendants' attorney. The defendants offered no further statement by affidavit or otherwise and upon a showing made at the said hearing, the court made an order as follows:
“After hearing the respective counsel and their contentions, the court, being fully advised in the matter, and it appearing that the defects complained of in petitioner's petition were, in fact, not as petitioner believed them to be, and that there is no defect in the foreclosure proceedings or of the sale of the property, it is ordered that the order to show cause be vacated and set aside.”
From this order the defendants duly appealed to this court.
The defendants' action amounts to a...
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