Rykowsky v. Bentz
| Decision Date | 14 June 1920 |
| Citation | 178 N.W. 284,45 N.D. 499 |
| Court | North Dakota Supreme Court |
From an order of the District Court of Grant County, Hanley, J defendant appeals.
Reversed.
Action dismissed in part. Defendant's motion granted. Order reversed.
Jacobson & Murray, for appellant.
The order denying the motion to vacate should be reversed and the judgment should be vacated. Whittaker v. Warren (S.D.) 86 N.W. 638; Williams v. Fairmont School Dist. 21 N.D. 198; Mougey v. Miller (N.D.) 169 N.W. 735.
E. T Burke, for respondent.
This is an appeal from an order of the District court of Grant county, denying an application made by the defendant, George Bentz, to vacate a default judgment rendered against him on the 21st day of July, 1917, and allowing him to answer the complaint of the plaintiff.
The complaint in this action alleges that the defendant wilfully wrongfully, maliciously, and unlawfully shot and wounded three horses belonging to the plaintiff, with the intent to vex, annoy, and harm the plaintiff; that the plaintiff has demanded of the defendant settlement for the damages occasioned by said shooting, but that defendant has refused to settle the same, to plaintiff's damages in the sum of $ 275, wherefore plaintiff demands judgment for treble damages as provided by § 10,050, Comp. Laws 1913. The summons and complaint were served March 28, 1917; on June 11 1917, plaintiff's attorney made affidavit of default, and judgment by default was entered on the 21st day of July, 1917. On the 15th day of September, 1919, the defendant made an application to open the default. The application was supported by affidavits and a verified answer. In his affidavit defendant averred, among other things, "that the following are the facts in connection with the procuring of said judgment: That in the month of January, 1917, the said plaintiff fraudulently and falsely claimed and pretended that this defendant shot and killed three of his horses, and claimed to have several witnesses who could prove it, and further falsely and fraudulently claimed that he could recover big damages against this defendant, and that said horses were shot in the year 1915; that at said time this defendant did not have any witnesses, except himself, to prove otherwise; that the said plaintiff, at that time, offered to settle with this defendant for the sum of $ 100 in full for said horses; that this defendant, believing and figuring it would cost him more than $ 100 to defend the action, and for the purpose of saving trouble and expense to himself in so defending, accepted said plaintiff's offer of settlement of $ 100, and pursuant to such settlement did then and there, on the 29th day of February, 1917, pay to the plaintiff the sum of $ 100 in the form of a check, bearing date the 27th day of February, 1917, which check is hereto attached and marked exhibit A; that this defendant did then and there verily believe that such was the end of plaintiff's claim; that prior to this time the said claim had been in the hands of one (), attorney, for collection; that thereafter and on the 28th day of March, 1917, a summons and complaint in the above-entitled action was served upon this defendant by one G. E. Berg; that then and there, and on the same day, this defendant went and saw the plaintiff, Martin Rykowsky, and asked him why he was suing him on said claim when it was settled, and the said Rykowsky then and there informed this affiant that such was the fault of the said (plaintiff's) attorney (), that he has forgotten to communicate to him, the said [plaintiff's attorney], the fact that the case was settled, but that he would see him right away and have the case dismissed; that the said [plaintiff's attorney] had no authority to start said action, and then and there informed this affiant that he could take his word for it that he would have [plaintiff's attorney] dismiss the said lawsuit; that shortly thereafter this defendant saw F. G. Boettcher, of Elgin, who this affiant believed was a lawyer, and showed the said papers to Boettcher, and told the said Boettcher about his interview and talk with the plaintiff Rykowsky, and that the said Rykowsky had promised to have [plaintiff's attorney] withdraw the action, and about his settlement with Rykowsky; that the said Boettcher then and there told this affiant to pay no attention to the papers, but to throw them away, that in view of the fact he had settled with Rykowsky, such was the end of it; that this affiant believed what the said Boettcher told him and paid no more attention to such summons and complaint." The affidavit further states that the defendant subsequently...
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