Mantel v. Pickle, 5470.

• Court: North Dakota Supreme Court
• Writing for the Court: NUESSLE
• Citation: Mantel v. Pickle, 56 N.D. 568, 218 N.W. 605 (N.D. 1928)
• Decision Date: 21 March 1928
• Docket Number: No. 5470.,5470.
• Parties: MANTEL v. PICKLE.

56 N.D. 568

218 N.W. 605

MANTEL

v.PICKLE.

No. 5470.

Supreme Court of North Dakota.

March 21, 1928.

Syllabus by the Court.

Application for relief from a default judgment under section 7483, C. L. 1913, providing that 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, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, is addressed to the sound judicial discretion of the court, and the court's ruling in that regard will not be disturbed on appeal unless it appears that in making it there was a manifest abuse of discretion.

The record examined, and held that in the instant case it does not appear that there was an abuse of discretion in vacating the judgment.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by Elsie Mantel against Susie L. Pickle. From an order vacating a default judgment and granting defendant leave to answer, plaintiff appeals. Affirmed, on condition.Adamson & Wheat, of Devils Lake, for appellant.

F. T. Cuthbert, of Devils Lake, for respondent.

NUESSLE, C. J.

The plaintiff appeals from an order vacating a default judgment and granting the defendant leave to answer.

In July, 1927, the plaintiff began an action against the defendant for damages for slander. Summons and complaint were served on July 17th. No answer was served or appearance made by the defendant, and on August 27th judgment by default was entered against the defendant. On September 12th defendant applied to the district court for the vacation of this judgment with leave to answer. This motion was made upon a sufficient proposed answer and an affidavit of merits. An order to show cause was issued directed to the plaintiff. The plaintiff appeared and showed cause in resistance of the application. On October 1st the court granted the motion. This appeal is from the order made accordingly.

The showing as made by the defendant is to the effect that she is an ignorant old woman. She had little knowledge of business affairs and little of court procedure. She had been a litigant twice before but both times as plaintiff. She thought that the summons directing her to appear and answer meant to appear and answer before the attorney for the plaintiff, the subscriber to the summons. She believed that no judgment could be taken against her without an appearance in court. Accordingly, she went to the office of the attorney for the plaintiff and denied the matters set out in the complaint. Thereafter she paid no further attention to the matter until she learned from a businessman that a judgment had been taken against her. Then she at once retained counsel, and steps were taken to relieve her from the default. On the other hand, the plaintiff's showing is to the effect that the defendant is much more sophisticated than her affidavit would lead one to believe, and that defendant fully understood the situation and the requirement with respect to answering, and her failure to answer came about by reason of her attempt to force a favorable settlement. She came to the office of the attorney for the plaintiff and wanted to settle the difficulty and get back a certain letter she had written. No settlement was effected however. Counsel for the plaintiff told her that unless she answered within 30 days from the date of service of the summons, judgment would be taken against her. She said she wanted to talk to her son and then she would see him again, but she did not return. No answer was interposed, so judgment was entered. After the entry of judgment an attorney, stating that he had been consulted by the defendant, inquired how much the plaintiff would demand in settlement. The plaintiff told him, but nothing further was done until defendant's present counsel moved to vacate the judgment.

[1] Relief may be had from a judgment on default under section 7483, Compiled Laws 1913, where such judgment was taken through mistake, inadvertence, surprise, or excusable neglect. Applications for such relief are addressed to the sound judicial discretion of the trial court, and the trial court...