Naderhoff v. Geo. Benz & Sons

• Decision Date: 16 May 1913
• Docket Number: 81912
• Citation: Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 141 N.W. 501 (N.D. 1913)
• Court: North Dakota Supreme Court

141 N.W. 501

25 N.D. 165

AUGUST NADERHOFF, JR., v. GEO. BENZ & SONS

No. 81912

Supreme Court of North Dakota

May 16, 1913

An appeal from the District Court for Stark County, Crawford, J.

Affirmed. Opinion by Goss, J., written after rehearing had.

Order affirmed, with costs.

Heffron & Baird, for appellant.

The pendency of a motion for security for costs does not operate to extend the thirty-day period, in which defendant must plead. Rev. Codes 1905, §§ 6853-7001-7336; Douglas v. Haberstro, 8 Abb. N.C. 230; Belknap v. Charlton, 25 Ore. 41, 34 P. 758; Steinback v Leese, 27 Cal. 295; Shinn v. Cummins, 65 Cal 97, 3 P. 133; McDonald v. Swett, 76 Cal. 258, 18 P 324; Greenfield v. Wallace, 1 Utah 189; Loring v Wittich, 16 Fla. 621.

The affidavit of merits is wholly insufficient in that it is made by the attorney, and not by defendant, without showing valid reasons therefor; that it is made on information and belief, and fails to state facts showing a meritorious defense. Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252; Sargent v. Kindred, 5 N.D. 19, 63 N.W. 151; 1 Enc. Pl. & Pr. 360, and notes; 1 Black, Judgm. P 347.

Wilful acts of omission on the part of defendant in failing to timely answer do not constitute "excusable neglect or mistake." Plano Mfg. Co. v. Murphy, 16 S.D. 380, 106 Am. St. Rep. 692, 92 N.W. 1072.

Where default is the result of purposely wilful acts, court will not vacate judgment. Bacon v. Mitchell, 14 N.D. 454, 4 L.R.A.(N.S.) 244, 106 N.W. 129; Hunt v. Swenson, 15 N.D. 512, 108 N.W. 41.

M. L. McBride (L. A. Simpson, of counsel), for respondent.

The order of the trial court in vacating a default judgment and allowing defendant to answer will not be disturbed, unless an abuse of discretion clearly appears. Barrie v. Northern Assur. Co. 99 Minn. 272, 109 N.W. 248; Potter v. Holmes, 74 Minn. 508, 77 N.W. 416; Nye v. Swan, 42 Minn. 243, 44 N.W. 9; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 27 L.R.A.(N.S.) 858, 126 N.W. 102.

The defendant and his counsel acted promptly and in good faith, and any omission occurring was due to their excusable neglect and mistake. Bacon v. Mitchell, 14 N.D. 454, 4 L.R.A.(N.S.) 244, 106 N.W. 129.

The defendant's application and motion for security for costs brought him within the terms of the statute. The action should have been dismissed upon plaintiff's failure to furnish such security. Rev. Codes 1905, § 7198.

Defendant's motion for costs being pending, the court had no authority to enter a default judgment before acting upon such motion. Smalley v. Lassell, 26 S.D. 239, 128 N.W. 141; Braseth v. Bottineau County, 13 N.D. 344, 100 N.W. 1082; Brown v. Brown, 37 Minn. 128, 33 N.W. 546.

Demand for payment of the money should have been made, as a condition precedent to bringing the action, and such a cause of action must be supported by proof of the claim and assessment of damages. Oswald v. Moran, 8 N.D. 111, 77 N.W. 281; Rev. Codes 1905, § 7001.

GOSS, J. SPALDING, Ch. J., concurring in the result. BRUCE, J., concurring in part and dissenting in part.

OPINION

GOSS, J.

This is an appeal from an order of the district court of Stark county vacating a default judgment taken by plaintiff against defendant corporation for $ 1,527, and costs and disbursements. Judgment was entered upon proof of service of summons and a verified complaint. The summons had been served upon defendant by service upon the secretary of state May 31, 1911. On June 23d, following, defendant appeared by its attorney in the action, and served a motion, notice to be heard July 3d, moving dismissal of the action upon the ground that plaintiff was a nonresident of the state, and had not filed security for costs as required by law; and stating that the motion would be based upon all the files and upon an affidavit served therewith, and made upon positive knowledge that plaintiff was then, and had been for some time past, a resident of Glendive, Montana, and there engaged in the saloon business, and not a resident of the state of North Dakota. This affidavit and notice of motion was served upon the attorneys for plaintiff nine days before the time to appear, answer, or demur had expired. Said affidavit is not controverted. The affidavits filed in support of the motion to vacate the judgment further disclose that defendant's attorney had prepared and had ready for service an answer, stating a valid defense, together with a demand for a bill of particulars of the items constituting the cause of action sued upon, both of which are dated June 21st, the date of the service of the notice of motion for security for costs. It further appears that the motion would have been noticed for hearing at an earlier date had the district judge not been temporarily without his district, hearing causes at Mandan, in an adjoining district; that his wishes were consulted as to the time when the motion should be noticed for hearing, which was set accordingly for July 3d. That by inadvertence the demand for bill of particulars and answer prepared was not served upon the attorneys for plaintiff. That on July 1st, without notice to defendant's attorney, and promptly at the expiration of the thirty-day period for service of answer or demurrer, plaintiff's attorneys presented the summons and complaint with proof of service, together with an affidavit of default reciting that no answer or demurrer had been served upon them, to the district judge, who signed an order for judgment by default without the assessment of damages, and for the full amount for which judgment was asked in the complaint; upon which default judgment was entered by the clerk. On July 13th, defendant, upon an affidavit of merit made by said attorney, accompanied by an answer verified by him upon information and belief, moved to vacate this default judgment, bringing the same on for hearing on July 21st, at which time the motion was granted, with leave to answer upon the payment of $ 25 terms, which terms were tendered but refused. The grounds upon which the motion was made and presumably granted were, among others, that there was a motion,--one to dismiss the above-entitled action, pending and duly noticed at the time that said judgment was entered; which motion, if it had been granted, would have prevented the entry of said judgment against defendant; and that the judgment as entered was taken without notice to defendant, though defendant had appeared in the action before the entry thereof. Also leave to vacate was asked upon the grounds set forth in the affidavit of merit of excusable neglect, inadvertence, and mistake of defendant in failing to serve answer previously prepared. From the order vacating the judgment this appeal is taken.

Defendant has, in all things since default judgment was entered, acted promptly. The motion to vacate the default judgment was seasonably made, noticed, heard, and decided. The motion challenged the power of the court to grant the judgment by default without assessment of damages, under § 7001, Rev. Codes 1905; also questioned the regularity of the entry of judgment while there was pending a motion that plaintiff give defendant security for costs, which if determined adversely to plaintiff would have stayed proceedings and might have resulted in the dismissal of the action, depending on the terms of the order for such security if granted. The motion to vacate covered additional grounds of excusable mistake and inadvertence on the part of the defendant in failure to answer, concerning which plaintiff challenges the sufficiency of the affidavit of merit to invoke the discretion and favor of the court, and on this appeal urges an abuse of discretion in vacating the judgment, if the same was vacated upon such grounds.

We will first decide the practice questions arising, the first of which concerns the regularity of the order for judgment on default made while defendant's motion that plaintiff give security for costs was pending, undisposed of and noticed to be heard three days after the time for answer or demurrer had expired, and in the absence of service of an answer or demurrer. Strange to say this court has hitherto declared no rule upon this question for this jurisdiction.

Respondent urges that the vacating of the judgment upon these grounds was not a matter of the invoking of the favor of the court but, instead, a matter going to the regularity of its proceedings; that it was improper to enter the judgment with the motion pending, undisposed of. An examination of the statutes upon this question is here in order. Assuming the court had power to enter the judgment without proof, § 7001 provides that the plaintiff, on default of the defendant in answer, could procure the judgment to be entered; § 6853 also provides that "the only pleading on the part of a defendant is either a demurrer or an answer," and that it must be served within thirty days after the service of a copy of the complaint; § 7336 declares that "when a defendant shall not have answered or demurred, service of notice or papers in the ordinary proceeding in an action need not be made upon him;" the first subdivision of § 7001 provides that "the plaintiff may file with the clerk proof of the personal service of the summons and complaint, . . . and that no answer or demurrer has been received," and thereupon judgment shall be entered for the amount demanded in the complaint, where the complaint is verified and the cause of action arises on contract for the recovery of money only. We will also take judicial notice that the usual practice in making the proof of default is by the affidavit of the attorney, reciting such service, and that no answer or demurrer to the complaint has been served upon or received by him. Under these provisions the motion made for...