Sargent v. Kindred
| Decision Date | 18 March 1895 |
| Citation | 63 N.W. 151,5 N.D. 8 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Action by Homer E. Sargent against Charles F. Kindred. From orders setting aside a judgment for plaintiff, and refusing, in a supplemental proceeding, to vacate said order, plaintiff appeals.
Ball & Watson, for appellant.
The defendant did not apply for relief from the judgment entered against him, within a year after he had knowledge of the judgment. Section 4939, Comp. Laws. Service of notice of judgment upon the attorney who had appeared in the cause was sufficient. Merriam v. Gordon, 22 N.W. 563; Bell v. Lumber Co., 32 N.W. 561. And is notice to the party. Schobacher v. Ins. Co., 17 N.W. 969; Robbins v Kuntz, 44 Wis. 558; Knox v. Clifford, 41 Wis 458; § 5336, Comp. Laws; Yorke v. Yorke, 3 N.D 343; Flanders v. Sherman, 18 Wis. 575, 592.
Under the Wisconsin statute identical with our own, it is held that the court cannot grant relief from a default after a year from the time when defendant had notice, although he applied for relief within the year. McKnight v. Livingston, 1 N.W. 14; Knox v. Clifford, 41 Wis. 458; Whitney v. Karner, 44 Wis. 563; Flanders v. Sherman, 18 Wis. 593. Defendant is barred from relief by his own laches. Cutler v. Button, 53 N.W. 563; Altman v. Gabriel, 9 N.W. 633; Groh v. Bassett, 7 Minn. 259; Gerish v. Johnson, 5 Minn. 12; Robbins v. Kuntz, 44 Wis. 558; McMurran v. Meek, 49 N.W. 983. And laches will defeat the vacation of judgment, even within the time provided by statute. Jonet v. Mortimer, 29 La.Ann. 206; Birch v. Frantz, 77 Ind. 199; Williams v. Williams, 70 N.C. 665; Bradford v. Coit, 77 N.C. 72; Calhoun v. Millard, 121 N.Y. 69. And especially where the adversary has been prejudiced by the delay. Wheeler v. Monahan, 23 N.W. 109. The defendant submitted himself to the jurisdiction of the state court, and the petition for removal to the Federal Court did not destroy jurisdiction of the state court. Wing v. C. & N. W. Ry. Co., 1 S.D. 455.
Davis, Kellogg & Severance, for respondent.
The statute authorizing the relief from a judgment entered through mistake or inadvertance within one year after notice thereof, is equivalent to providing that this relief may be granted within one year after actual knowledge of the judgment. Pier v. Millard, 63 Wis. 33; Bever v. Beardmore, 40 Ohio St. 70; Wiclan v. Shilloch, 23 Minn. 227; Washburn v. Sharpe, 16 Minn. 53; 1 Black on Judgments, 387; Freeman on Judgments, § 105. There are many purposes for which the implied authority of the attorney for a prevailing party is held to continue beyond the entry of the judgment. Not so, however, as to the attorney for the defeated party. Service of papers on the former attorney of the defeated party after judgment, is entirely ineffectual to bind the defendant. Berthold v. Fox, 21 Minn. 51; Kronsnable v. Knoblauch, 21 Minn. 57; Sheldon v. Risedorph, 23 Minn. 518; Clark v. McGregor, 21 N.W. 866; Hooker v. Village, 43 N.W. 741; Hillegrass v. Bender, 78 Ind. 228; Cruikshank v. Goodwin, 66 Hun. 626, 20 N.Y.S. 577; Person v. Leather, 7 So. 391; Grames v. Hawley, 50 F. 319; Kamm v. Stack, 1 Saw. 547; Jackson v. Bartlett, 8 Johns. 367; McLaren v. Charrier, 5 Paige Ch. 534; Weeks on Attorneys, 238, 239, 248. Where a petition for removal in proper form is made by the filing of a petition, the state court loses jurisdiction and cannot proceed further in the case until the Federal Court shall have held the removal improper. Miller v. Sunde, 1 N.D. 1, (44 N.W. 301.) The judgment having been entered without jurisdiction, the statutory limitation does not apply to a motion for its vacation. In re Tilden, 98 N.Y. 444; Hurlburt v. Coman, 43 Hun. 586; Wharton v. Harlan 66 Cal. 422; Cowles v. Hayes, 69 N.C. 410; In re Underhills' Estate, 9 N.Y.S. 457; Hansen v. Hansen, 12 P. 736; Feikert v. Wilson, 37 N.W. 585.
BARTHOLOMEW, J. WALLIN, C. J., did not sit at the hearing of this case, or take any part in the decision. CORLISS, J., concurring in part and dissenting in part.
There are two appeals submitted in this case. The first is from an order setting aside a judgment in plaintiff's favor, and the second is from an order refusing, upon a supplemental showing, to vacate the first order. These orders in turn involve two cases between the same parties which were in the same condition, and by stipulation the appeals in one case shall be held to cover both. We shall speak of but one case in this opinion.
In the order setting aside the judgment it is recited, inter alia, that "at the time of the trial of said action the same had been removed to the Circuit Court of the United States, and this court had no jurisdiction to try and determine the same. " This point is urged in this court. The above recital seems to contradict the record. The record shows that a request was filed by the defendant, under the provisions of the enabling act, under which this state was admitted into the Union, for such a transfer of the case, and that the request was denied. Furthermore, no such claim is made in the application to set aside the judgment, and it is not clear that point is in the case. But in no event is it well taken. The action was commenced in 1887, in the District Court of Cass County, in the late Territory of Dakota. There was diverse citizenship, the defendant not being a resident of such territory, and had North Dakota been a state at that time the action could have properly been transferred to the United States Circuit Court. Under the terms of the enabling act, after North Dakota became a state, cases in that condition might, upon request filed, be transferred to the proper Federal Circuit Court. But it has frequently been held, under such circumstances, that any action in the case after statehood by which a party submits himself to the jurisdiction of the state court, and the state court acts thereon, precludes such party from subsequently removing the case to the Federal Court. Gull River Lumber Co. v. School District No. 39, 1 N.D. 408, 48 N.W. 340; Wing v. Railroad Co., 1 S.D. 455, 47 N.W. 530; Ames v. Railroad Co., 4 Dill. 257, Fed. Cas. No. 324; Gaffney v. Gillette, 4 Dill. 264, Fed. Cas. No. 5,168; Carr v. Fife, 44 F. 713; Murray v. Mining Co., 45 F. 387. The state court, as the successor of the territorial court, acquired jurisdiction of this case in November 1889, subject to be divested as in the enabling act specified. In June, 1890, the defendant moved upon affidavits for a continuance of the case, and such motion was granted. At the December term, 1890, this was repeated, and the motion denied. Thereupon the request to transfer to the Federal Circuit Court was filed and denied. If the right to the transfer depended upon the decision of any question of fact, such as the question of diverse citizenship or the like, the filing of the application at once divested the state court of all jurisdiction to determine that question, and consequently of all jurisdiction of the case. Miller v. Sunde, 1 N.D. 1, 44 N.W. 301, and case there cited. But the court was bound to take notice of its own records, and those records showed conclusively that the defendant had waived his right to have the case transferred. It was as if a party should file a petition for removal on the ground of diverse citizenship and at the same time admit upon the record that no diverse citizenship existed. With the admission of the nonexistence of the only fact that could give the Federal Court jurisdiction standing upon the record, the state court could not be ousted of jurisdiction, as jurisdiction must rest somewhere. The order setting aside the judgment cannot be sustained upon the ground that the case had been transferred to the Federal Court.
The application to set aside the judgment was brought under § 4939, Comp. Laws, in which it is provided that the court "may also 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," etc. As has been stated, the action was commenced in 1887, in the District Court for Cass County, in which two regular terms of court were held each year. The case was continued from term to term, always, as the record shows, at the request of the defendant, except in one instance. Plaintiff claimed in his complaint about $ 11,000, and defendant set up a counterclaim amounting to about $ 30,000. The amounts involved were such that the case was not likely to be forgotten or neglected. The interests of the defendant were in the hands of one of the most experienced and careful attorneys at this bar. At the June, 1890, term of the court, the case was continued, on defendant's motion, based upon affidavits showing the absence of a material witness, the court then stating that the case should stand for trial at the December term, and no further continuance would be granted, except for extraordinary cause. When the case was reached for trial on December 6, 1890, the attorney for the defendant moved for a further continuance, and, we gather from the record, based his motion upon an affidavit of the defendant. The nature of that affidavit is not disclosed, but no claim whatever is made that it was based upon the sickness of defendant's son hereinafter mentioned. The application was denied. Immediately following this the request for the transfer was made and denied, thereupon the attorney for the defendant announced that he was under instructions from his client to first apply for another continuance, and, failing in that, to apply for the removal of the...
To continue reading
Request your trial