Olson v. County of Sargent
| Decision Date | 14 February 1906 |
| Citation | 107 N.W. 43,15 N.D. 146 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Sargent county; Lauder, J.
Action by Amund Olson against the county of Sargent and others. From an order setting aside a default judgment and granting leave to answer, plaintiff appeals.
Affirmed.
O. S Sem, for appellant.
E. W Bowen and J. E. Bishop, for respondents.
This is an appeal from an order setting aside a default judgment and granting the defendant leave to answer the complaint. The facts are these: The action was commenced on the 26th day of November, 1901, by the personal service of the summons and complaint. Judgment by default was entered on January 14 1903. On December 1, 1903, the judgment was set aside on motion of the defendant after notice to the plaintiff, and leave was granted the defendant to interpose an answer. The application to open up the judgment was regular in all respects. The district court did not allow any terms or costs to the plaintiff as a condition upon the opening up of the judgment. This is the principal ground of objection to the order. Upon the application to set aside the judgment the following facts were shown: Within a few days after the service of the summons and complaint upon the defendants in the action, it being an action to set aside certain void taxes amounting to about $ 70 pretended to have been assessed against the plaintiff, the defendants settled the action with the plaintiff personally without the knowledge of the plaintiff's attorney, and in such settlement the plaintiff agreed to dismiss the action. The action was not dismissed, however, and plaintiff's attorney thereafter procured the entry of judgment without knowledge that the action had been settled by his client. The defendants, relying upon such settlement, did not serve an answer nor take any further steps in the action until the motion was made to set aside the judgment. It does not expressly appear when the defendant received actual notice that a judgment had been entered in the action. Hence the question of laches in applying to be relieved from the judgment is not definitely presented. The main contention of the plaintiff is that no terms were imposed as a condition to granting the motion. Plaintiff's attorney had expended $ 12 in money as disbursements, and it is his contention that it was an abuse of discretion to allow the defendant to answer in the case without compelling a payment to him of the money actually expended at least. The statute prescribes that judgments rendered against parties through their "mistake, inadvertence, surprise or excusable neglect" may be set aside "upon such terms as may be just."
Plaintiff contends that the statute should be construed as mandatory, and that some terms must in all cases be imposed. We are unable to concur in that view. The imposition of terms is a matter in which trial courts have an extremely wide discretion. Section 298, Rev. Codes 1899, vests such discretion in the trial court. It is not to be construed as prohibiting the opening of a judgment unless on terms. There are cases frequently arising in which it would be unjust to open the judgment on terms or conditions. Like statutes have been construed not to make it incumbent on the court to impose terms in every instance. Robinson v. Merrill, 80 Cal. 415, 22 P. 260; Warder v. Patterson, 6 Dakota 83, 50 N.W. 484; Cottrell v. Cottrell, 83 Cal. 457, 23 P. 531. There was no abuse of discretion in not allowing any terms or costs to the plaintiff as a condition upon setting aside the judgment.
It is next contended that the proposed answer failed to allege a meritorious defense. The defense set forth was that the action had been settled by the parties before the time to answer had expired, and that on such settlement the plaintiff had...
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