Appeal
from District Court, Stark County, W. C. Crawford, J.
From an
order vacating a default judgment and permitting defendant to
answer upon the merits, plaintiff appeals.
Affirmed.
T. F
Murtha, for appellant.
The
discretion referred to in such cases is not a mental
discretion, but a legal one, to be exercised within the law.
It is the duty of courts to follow the intent and spirit of
the law, and not simply to give effect to the will of the
judge. Tripp v. Cook, 26 Wend. 152.
A
meritorious defense must also be shown, as well as surprise
inadvertence, or excusable neglect. Racine-Sattley Mfg
Co. v. Pavlicek, 21 N.D. 222, 130 N.W. 228.
The
defense must be set out in particular, and the general
allegation that defendant has been advised by his attorney
that he has a good defense is not sufficient. Wheeler v
Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381; 23 Cyc.
955-958; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151;
Kirschner v. Kirschner, 7 N.D. 292, 75 N.W. 252; 23
Cyc. 931, note 36; Citizens' Nat. Bank v. Branden, 19
N.D. 489, 27 L.R.A.(N.S.) 858, 126 N.W. 102.
No
relief can be had for a mistake of law. Keenan v.
Daniells, 18 S.D. 102, 99 N.W. 853; 23 Cyc. 931, note
35.
The
evidence offered in support of the judgment fully overcomes
the showing made to reopen. 23 Cyc. 958; Wheeler v. Castor,
supra.
W. F.
Burnett, for respondent.
In
motions of this character, the trial court exercises powers
of a court of equity. Unless there appears a plain, clear
abuse of its discretion, the appellate court will not
interfere. Racine-Sattley Mfg. Co. v. Pavlicek, 21
N.D. 222, 130 N.W. 228; Wheeler v. Castor, 11 N.D.
347, 61 L.R.A. 746, 92 N.W. 381; Keeney v. Fargo, 14
N.D. 419, 105 N.W. 92; Olson v. Sargent County, 15
N.D. 146, 107 N.W. 43; Colean Mfg. Co. v. Feckler,
16 N.D. 227, 112 N.W. 993; Citizens' Nat. Bank v.
Branden, 19 N.D. 489, 27 L.R.A.(N.S.) 858, 126 N.W. 102.
Courts
have and possess a broad discretion in such cases. Colean
Mfg. Co. v. Feckler, 16 N.D. 227, 112 N.W. 993.
OPINION
FISK, J.
Plaintiff appeals from an order made by the district court of
Stark county on September 13, 1912, vacating a default
judgment entered in appellant's favor on August 3, 1912,
for $ 1,586. It is appellant's contention that the
district court committed a manifest abuse of discretion in
making the order complained of. He contends, in other words,
that defendant's showing was wholly insufficient: First,
"because the affidavits and answers do not make a proper
showing of merits;" and, second, "the defendant
wholly fails to show that the judgment was taken against it
through its mistake, inadvertence, surprise, or excusable
neglect."
The
record discloses that the defendant is a foreign corporation,
and the summons and complaint were served upon the secretary
of state on July 2, 1912, who admitted service and forwarded
the papers to defendant in the state of Wisconsin. The cause
of action set forth in the complaint is based upon an alleged
employment by defendant of the plaintiff, and also of the
firm of McFarlane & Murtha, lawyers, of which firm plaintiff
was a member, in handling certain litigation involving lands
in Dunn county, and for certain advances made by such
attorneys in connection with such litigation. At the hearing
of the motion to vacate the default judgment, defendant
tendered a proposed answer to the complaint, consisting of a
general denial, which proposed answer was verified by its
attorney, Burnett, upon information and belief.
It also produced the affidavits of Geo. Dow, Robe Dow, Rufus
B. Smith, and W. F. Burnett. The substance of these
affidavits is set forth in appellant's brief as follows:
"The
affidavit of George Dow sets forth in substance that he is
the president of the defendant company, and one of its
directors; that nearly all of its business is transacted from
the city of Stoughton, Wisconsin; that the summons and
complaint in said action were sent by mail by the secretary
of state of North Dakota, in a letter dated July 2, 1912
addressed to defendant at Madison, Wisconsin; that the letter
and summons and complaint were received by the defendant on
the 9th day of July, 1912, and that on that day the affiant
with Robe Dow, another of its directors, called upon Attorney
Rufus B. Smith, at Madison, Wisconsin, who then had charge of
some other litigation for defendant, and stated its defense
to said Smith, and that said company desired to defend the
said action, and were informed by said Smith that he could
not appear in the courts of North Dakota, and that it was
necessary to retain an
attorney in North Dakota for the purpose of interposing an
answer; that he is informed and believes that on the 15th day
of July, 1912, the said Smith telegraphed W. F. Burnett, an
attorney at Dickinson, North Dakota, and received an answer
by wire from said Burnett on July 16th, stating that he would
defend said action; that thereafter the said Smith wrote a
letter to said Burnett, retaining him to defend said action;
that affiant is informed and believes that said Smith wrote
said Burnett, retaining said Burnett to defend said action,
and positively that on the 6th day of August defendant
received a letter from Burnett stating that an answer had
been interposed. On the 10th day of August it received a
letter from Burnett, stating that the answer had not been
accepted and judgment in said action had been entered. That
defendant had no knowledge or information that there had been
any failure on the part of anyone to interpose an answer
until the receipt of the letter from Burnett about August
10th.
"The
affidavit further states that defendant has a full and
complete defense on the merits to the whole of
plaintiff's claim in this action; that the action is
brought to recover the sum of $ 2,566.25 for legal services
and disbursements; that the defendant is not in any manner
indebted to plaintiff in any sum whatever; that the defendant
never retained the plaintiff or employed him in
any manner whatever, or in relation to any matter whatever,
and no officer of the defendant company ever retained or
employed said plaintiff, and that the defendant fully and
freely stated the case to its counsel, Rufus B. Smith, and
that it has a full and complete defense on the merits to the
whole of plaintiff's claim, as it is advised by its
counsel and verily believes; and further says that at the
direction of said defendant the case has been fully and
freely stated to W. F. Burnett, and is advised by said
Burnett that it has a full and complete defense on the merits
to the whole of plaintiff's claim.
"The
affidavit of Robe Dow is to the effect that as far as he
knows or can ascertain the defendant never employed the
plaintiff, T. F. Murtha, in any manner whatever to perform
any services for it.
"The
affidavit of Rufus B. Smith is to the effect that he is an
attorney at law, residing at Madison, Wisconsin, and has been
the attorney of the defendant in other matters; that on the
9th day of July, 1912, he was consulted by George Dow
president, and by one of the directors of the defendant
company, in relation to this action; that he was then
informed by the president and director that said defendant
never employed plaintiff and never retained him, and that
plaintiff had never performed any service for said defendant;
that affiant informed the said president that it would be
impossible for affiant to appear in the district court of
Stark county, North Dakota, and that it would be necessary to
employ an attorney in North Dakota to interpose an answer and
make proper defense; that on the 9th day of July, affiant
wrote plaintiff, asking how long the defendant had to answer,
and on the 13th day of July affiant received a letter from
plaintiff in which plaintiff stated that defendant had thirty
days from the time of the service of the papers on the
secretary of state; that affiant, in the hurry and press of
business, hurriedly read said letter, and obtained therefrom
the impression that...
