Monson v. Nelson, 8227

• Decision Date: 13 October 1966
• Docket Number: No. 8227,8227
• Citation: 145 N.W.2d 892
• Parties: Margaret MONSON, Laurel Monson, Lee Monson, a minor, by Melfred Monson, his father and guardian ad litem, and Melfred Monson, individually, Plaintiffs and Respondents, v. Melvin H. NELSON, as Administrator of the Estate of Richard E. Olson,deceased, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 892

145 N.W.2d 892

Margaret MONSON, Laurel Monson, Lee Monson, a minor, by

Melfred Monson, his father and guardian ad litem, and Melfred Monson, individually, Plaintiffs and Respondents, v. Melvin H. NELSON, as Administrator of the Estate of Richard

E. Olson,deceased, Defendant and Appellant.

No. 8227.

Supreme Court of North Dakota.

Oct. 13, 1966.

Syllabus by the Court.

1. Our rules of civil procedure provide that in all cases other than for a sum certain, the court shall require such proof as may be necessary to enable it to determine and grant the relief to which the plaintiff may be entitled before directing the entry of a default judgment by the clerk of court. Rule 55(a)(2), N.D.R.Civ.P.

2. A mere right to a default judgment does not constitute a final judgment under our rules. Before any judgment can have any force as such it must be entered in the judgment book. Rule 58, N.D.R.Civ.P.

3. A judgment is not final until entered by the clerk upon the order of the court of the judge thereof and signed by the clerk in the judgment book, and a judgment is not effective before such entry.

4. An act of the legislature is presumed to be prospective unless the legislature clearly manifests a contrary intention. § 1--02--10, N.D.C.C.

5. An amendatory act, like other legislative enactments, does not take effect prior to the time of passage, and the new or changed portions have no application to prior transactions unless an intent to the contrary is expressed in the act or clearly implied from its provisions.

6. Here the amendment does not express an intent by the legislature by express words nor by implication from its provisions that the amendment shall be applied retroactively to claims accruing prior to the effective date of the amendment.

7. Where the legislative assembly has amended § 39--17--07, N.D.C.C., increasing the limits of recovery under the Unsatisfied Judgment Fund Act and where, after the effective date of the amendment, a plaintiff recovers a judgment for damages for injuries sustained in an automobile accident occurring before the effective date of the amendment, upon such judgment becoming final by the entry of such judgment in the judgment book, and upon complying with the provisions of § 39--17--07, N.D.C.C., the judgment creditor is not entitled to recover from the Unsatisfied Judgment Fund up to the increased limits provided by the amendment, Chapter 282, § 2, Session Laws of 1963, there being no words or expressions in the amendment that it shall operate retroactively, the amendment increasing the limits of recovery from the Fund does not apply where the claim or cause of action arose prior to the effective date of the amendment.

Duffy & Bakken, Cooperstown, for plaintiffs and respondents.

Dale H. Jensen, Asst. Atty. Gen., Bismarck,

Dale H. Jensen, Asst. Atty. Gen., Bismarck, Atty. Gen., Mayville, for defendant and appellant.

KNUDSON, Justice.

This is an appeal by the Attorney General of North Dakota on behalf of the North Dakota Unsatisfied Judgment Fund, from an Order for Payment of Judgment from Unsatisfied Judgment Fund made by the District Court of Griggs County in favor of the plaintiffs, Margaret Monson, Laurel Monson, Lee Monson, a minor by Melfred Monson, has father and guardian ad litem, and Melfred Monson, individually, and against the defendant Melvin H. Nelson, as administrator of the estate of Richard E. Olson, deceased.

This case arose out of an automobile accident which occurred October 20, 1962. Laurel Monson was the driver of an automobile in which Margaret Monson and Lee Monson were passengers. An automobile driven by Richard Olson struck the Monson vehicle, severely injuring its occupants. Richard Olson died from injuries received in the collision. Melvin H. Nelson was appointed administrator of the estate.

This action was commenced by the service of a summons and complaint on the defendant administrator on May 18, 1963. Upon the default of the defendant for failure to answer the complaint, the plaintiffs, on June 19, 1963, served on the Highway Commissioner and the Attorney General a Notice to Take Default Judgment. The matter was heard by the district court on July 23, 1963. The court found that the negligence of Richard Olson in the operation of his motor vehicle was the proximate cause of the injuries to the plaintiffs, and made his Order for Judgment on August 13, 1963. Pursuant to such Order the Judgment was entered by the Clerk of Court on August 21, 1963, awarding the plaintiffs the following amounts: $10,000.00 to Margaret Monson; $7,500.00 to Laurel Monson $2,500.00 to Lee Monson; and $4,163.42, together with costs and disbursements of $147.20, to Melfred Monson. The award to Melfred Monson was for medical and dental services and care incurred by him for the treatment of the injuries to Margaret, Laurel, and Lee Monson. An execution issued on this judgment was returned wholly unsatisfied by the sheriff of Griggs County on August 22, 1963. On the application of the plaintiffs the court made an order on September 9, 1963, for the payment of the judgment from the Unsatisfied Judgment Fund in the aggregate amount of $20,047.20, to each of the plaintiffs in the following limits: To Margaret Monson the sum of $8,224.83; to Laurel Monson the sum of $6,165.87; to Lee Monson the sum of $1,445.83; to Melfred Monson the sum of $4,163.42 and costs in the sum of $47.20; amounting to a total payment to said plaintiffs in the sum of $20,047.20.

The only issue raised by the Attorney General is whether the maximum amount payable from the Unsatisfied Judgment Fund in one accident is ten thousand dollars, as provided by § 39--17--07, N.D.C.C., or twenty thousand dollars, as provided by Chapter 282, § 2, of the 1963 Session Laws, amending § 39--17--07, in considering the amount payable in an accident involving bodily injury occurring before July 1, 1963.

Prior to the 1963 amendment, the pertinent part of § 39--17--07, supra, read as follows:

No order shall be made by the court directing the payment of more than five thousand dollars, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of five thousand dollars for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than ten thousand dollars, exclusive of costs, in cases arising out of one accident. * * *

The identical part of the statute, as amended by § 2 of Chapter 282, supra, reads as follows:

No order shall be made by the court directing the payment of more than ten thousand dollars, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of ten thousand dollars for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than twenty thousand dollars, exclusive of costs, in cases arising out of one accident. * * *

The effect of the amendment was to increase the maximum amount recoverable from the Unsatisfied Judgment Fund from five thousand dollars for each person and ten thousand dollars in one accident, to ten thousand dollars for each person and twenty thousand dollars in one accident.

The Attorney General, representing the Unsatisfied Judgment Fund, argues that the judgment in this case was Rendered against the defendant as of June 8, 1963, the date he came in default for failure to answer the complaint. His position is that all judicial acts were completed prior to July 1, 1963, by the doctrine of relation back. He contends that the subsequent acts of the court of determining the amount of the damages, the order for judgment, the entry of judgment, and the order to pay out of the Fund, were merely procedural, and related back to June 8, 1963, the date of default, a date prior to July 1, 1963, the date the amendment became effective, and therefore, the order for payment from the Unsatisfied Judgment Fund should have been limited to ten thousand dollars as provided by the statute before it was amended.

The contention of the appellant that the judgment was rendered and became final as of June 8, 1963, is untenable, being contrary to the rules of civil procedure and the decisions of this court.

Our rules of civil procedure provide that in all cases other than for a sum certain, the court shall require such proof as may be necessary to enable it to determine and grant the relief to which the plaintiff may be entitled before directing the entry of a default judgment by the clerk of court.

Rule 55, N.D.R.Civ.P., reads in part:

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the fact is made to appear by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant as follows:

(1) When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court * * * may direct the entry of judgment.

(2) In all other cases, the court, before directing the entry of judgment, shall require such proof as may be necessary to enable it to determine and grant the relief, if any, to which the plaintiff may be entitled. To this end, the court may:

1. Hear the evidence and assess the damages; * * *

This court, in discussing this question in Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 141 N.W. 501, at page 509, 47 L.R.A., 853, quoting from Tuttle v. Smith, 6 Abb. Pr. 329, said:

* * * The extent of the injury, or the amount of damages, is matter of judgment or legal discretion depending on extrinsic facts. It may be stated first in the complaint in round numbers, according to the claim and opinion of the plaintiff; but it must be determined upon evidence, or the proof of facts,...