Racine-Sattley Manufacturing Company, a Corp. v. Pavlicek
| Decision Date | 30 January 1911 |
| Citation | 130 N.W. 228,21 N.D. 222 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stark county from an order vacating a default judgment made by Crawford, J.
Affirmed.
Affirmed, with costs.
Heffron & Baird, for appellant.
One who would open a default judgment must, by affidavit, answer, or both, show a good defense on the merits, and excuse his failure to appear in the case. Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Wheeler v. Castor, 11 N.D. 347 61 L.R.A. 746, 92 N.W. 381, 23 Cyc. Law & Proc. p. 930, note 32.
Ignorance only excuses in extreme cases. Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979.
McFarlane & Murtha, for respondent.
Motion to vacate is addressed to sound discretion, and ruling reversed only for abuse. Rosebud Lumber Co. v. Serr, 22 S.D. 389, 117 N.W. 1042; Meade County Bank v Decker, 19 S.D. 128, 102 N.W. 597; Fargo v Keeney, 11 N.D. 484, 92 N.W. 836; Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381; Minnesota Thresher Mfg. Co. v. Holtz, 10 N.D. 16, 84 N.W. 581; Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 36 Am. St. Rep. 761, 47 N.W. 955; Weber v. Tschetter, 1 S.D. 205, 46 N.W. 201; Buell v. Emerich, 85 Cal. 116, 24 P. 644; Olson v. Sargent County, 15 N.D. 146, 107 N.W. 43.
Promise to suppress a criminal prosecution is no consideration. Smith v. Steely, 80 Iowa 738, 45 N.W. 912; Meech v. Lee, 82 Mich. 274, 46 N.W. 383; Bryant v. Peck & W. Co. 154 Mass. 460, 28 N.E. 678; Haynes v. Rudd, 83 N.Y. 251, 102 N.Y. 373, 55 Am. Rep. 815, 7 N.E. 287; Hamilton v. Lockhart, 158 Pa. 452, 27 A. 1077.
Plaintiff appeals from an order made March 6, 1909, vacating a judgment entered February 2, 1909, by default, for $ 2,856, against several defendants, one of whom is the respondent. Personal service of summons and complaint was had on respondent on January 2, 1909; execution was levied on defendant's real estate on February 8th, and on February 19th, by her attorneys, motion was made to vacate said judgment, with leave to file answer, and on hearing granted. Such hearing was had on defendant's affidavit of merits and a proposed verified answer with supporting affidavit, and a plaintiff's counter affidavit controverting the affidavit of merits.
Plaintiff assigns such ruling as error, urging:
(1) No sufficient excuse is shown for defendant's default in failing to answer.
(2) That the affidavit and answer do not constitute a defense to plaintiff's cause of action.
(3) That the action of the trial court in vacating the judgment was an unwarranted abuse of discretion.
We can summarize the affidavit of merit and answer into the following statement:
Respondent is foreign born and fifty-five years old, cannot speak or understand, read or write, English, and wholly unacquainted with business methods. In 1908, at her son's and plaintiff's solicitation, to save her son from criminal prosecution by the plaintiff, and for no other consideration, she executed a note for six hundred dollars ($ 600), by making her cross for her signature thereon; that soon thereafter, because of such threats, she in like manner signed a note sued on, then supposing she was re-executing the $ 600 note for the same purpose. After the service of summons and complaint upon her, she spoke to the son, for whom she signed the note, and he assured her that he would tend to the matter and see that no trouble came to her, and that she would not have to pay anything; that she did not know that these papers constituted the beginning of the lawsuit, or that she was required to answer or defend; and the first knowledge of this was on February 8th, when levy was made under execution against her property, at which time she learned from the sheriff, through an interpreter, that one of the notes she had signed by her mark had been for $ 2,725, and was the note upon which this judgment was entered. On February 12th she came to Dickinson and consulted with and employed attorneys, and was by them advised of her rights in the premises; "that she has fully and truthfully disclosed to said attorneys all the facts and circumstances in regard to this matter, and that she is advised by said attorneys that she has a good, legal, just, and equitable defense to the cause of action of the plaintiff; that this application is made in good faith, and not made for purposes of delay."
Her proposed answer, verified by her attorney, sets forth purported defenses of want of consideration, execution of the note sued on under plaintiff's duress, occasioned by and through plaintiff's threats to prosecute her son for felony, forgery, if not so paid, and fraud alleged to have been practised upon her in obtaining the execution and delivery by her of said note.
Plaintiff at the hearing offered an affidavit controverting defendant's affidavit of merit, alleging that defendant is acquainted with and can speak English; that he was present and saw the respondent sign the note set forth in the complaint, and witnessed her signature thereto, and that she signed the same freely and voluntarily; that no threats toward her or her son were made; that no one stated to her that the note was only six hundred dollars ($ 600); that the note executed was for $ 2,725.
On hearing the trial judge granted respondent's motion, vacated the judgment, and granted her leave to serve and file an answer, upon the payment of $ 50 term fees, which were tendered plaintiff's attorney and by him refused. This appeal was then perfected. Thereafter respondent was examined on plaintiff's application, under the provision of the statute relative to the examination of adverse parties before trial, and her testimony then taken was filed in this court, and, over respondent's objection, we are asked to pass upon the same in connection with the affidavit of merits and answer.
This court will not consider on this appeal any record other than that before the trial judge, on the motion and upon which the order appealed from was made. Plaintiff could have examined the defendant prior to the appeal and moved thereon the trial court to have set aside the order vacating the judgment, and reinstated the judgment in force, and from a denial thereof this court would have been in position to review such testimony of the defendant; but this court will not, on plaintiff's appeal, consider such testimony taken after the ruling appealed from was made. The appeal brings before us for review the order of the district court, together with the affidavits and pleadings upon which such order is based, and on such record the question of whether the trial judge committed an abuse of discretion in vacating the judgment.
Respondent invokes § 6884 of the Revised Codes of 1905 as her ground for asking that the default be set aside and she be permitted to answer. This statute provides 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, and may supply an omission in any proceeding." This statute has been so repeatedly construed by our own court that it is almost unnecessary to quote other authority than our own decision. The following cases all bear upon the same question or are involved in the construction of the statute quoted:
Gauthier v. Rusicka, 3 N.D. 1, 53 N.W. 80; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Nichells v. Nichells, 5 N.D. 125, 33 L.R.A. 515, 57 Am. St. Rep. 540, 64 N.W. 73; Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381; Fargo v. Keeney, 11 N.D. 484, 92 N.W. 836; Braseth v. Bottineau County, 13 N.D. 344, 100 N.W. 1082; Martinson v. Marzolf, 14 N.D. 301, 103 N.W. 937; Keeney v. Fargo, 14 N.D. 419, 105 N.W. 92; Olson v. Sargent County, 15 N.D. 146, 107 N.W. 43; Marin v. Potter, 15 N.D. 284, 107 N.W. 970; Hunt v. Swenson, 15 N.D. 512, 108 N.W. 41; Colean Mfg. Co. v. Feckler, 16 N.D. 227, 112 N.W. 993; Plano Mfg. Co. v. Doyle, 17 N.D. 386, 17 L.R.A.(N.S.) 606, 116 N.W. 529; Schouweiler v. Allen, 17 N.D. 510, 117 N.W. 866; Cline v. Duffy, 20 N.D. 525, 129 N.W. 75; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 27 L.R.A.(N.S.) 858, 126 N.W. 102, and Williams v. Fairmount School Dist., 21 N.D. 198, 129 N.W. 1027.
As the questions involved in this case are often before trial courts for determination and that on varying facts and under different circumstances, each case depending more or less upon the facts and circumstances peculiar to it, in deciding the case before us it might be useful, so far as is necessary to decide the questions raised in this case, to review briefly the decisions of our court on this statute.
The procedure to obtain relief from a default judgment is by motion to vacate the same, with leave to answer on the merits. Proper practice requires this to be done by the service of an affidavit of merits and proposed answer, and the presentation of the same to the trial judge, with a motion to vacate the judgment with leave to answer. See Gauthier v. Rusicka, 3 N.D. 1, 53 N.W. 80; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Kitzman v. Minnesota Thresher Mfg. Co. 10 N.D. 26 84 N.W. 585; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381. The affidavit of merits is necessary in all cases when the application is made under the provisions of the statute quoted (§ 6884), and, in the...
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