Smith v. Cook
| Decision Date | 21 November 1955 |
| Docket Number | No. 7498,7498 |
| Parties | John W. SMITH, Plaintiff and Appellant, v. Bert L. COOK; Robert H. Tuttle; C. L. Stephens; Bessie A. McDonough, Bessie A. Porger; First State Bank of White Earth, North Dakota, (closed), L. R. Baird, Receiver, Bismarck, North Dakota; American State Bank of Burlington, North Dakota, a corporation; Olla H. Smith; George Grandin; Mary A. Rahtge; Hattie C. Rahtge; Mary A. Curl; Reuben C. Curl; Robert A. Feidler; Rosa A. Wright; Richard R. Wright; C. H. F. Bohstedt; K. C. Wright; Kenmare Hard Coal Company, a corporation; William M. Vance; H. B. Adams; Robert L. Olbing; W. E. Arnot; Kenmare Hard Coal Brick and Tile Company, a corporation; Jesse Van Valkenberg; Horican State Bank, a corporation; Dakota Trust Company, a corporation; A. L. Netcher, Receiver of Northern and Dakota Trust Company, of Fargo, North Dakota, a corporation; D. D. Palmer, Trustee; J. A. Wright; Frederick E. Nelson; Louise Goldstein; Rosa Goldstein; George A Tiller; Irene Tiller; Jourgen Olson and Company, a corporation; Jourgen Olson, John Werberg and Clara Olson; Directors of Jourgen Olson and Company, a corporation; dissolved; Henriatta Mather; John Leduc; Anna Leduc; Martin Walser; Flickertail Mutual Coal Company, a corporation; The American Coal Briquetting Company, a corporation; Walter H. Fisher; C. N. Foncanon; and G. N. Law, Directors of American Coal Briquetting Company, dissolved; James Dolan; Robert L. Albans; Clint Smith; and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the real property described in the Complaint, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under Section 32-1713, NDRC 1943 which provides that 'A defendant in an action to determine adverse claims * * * upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.' It is incumbent upon a defendant who seeks to have a default judgment vacated and to be permitted to defend to show prima facie, by his moving papers, that he has a good and meritorious defense; and where he presents affidavit of merits and proposed answer, and such proposed answer sets forth facts constituting a defense on the merits, and the application to vacate was made within one year after rendition of the default judgment, it was not error for the trial court to grant said application.
2. For reasons stated in the opinion it is held the affidavits of merits, and the proposed answers presented by the defendants in the instant case set forth facts sufficient to constitute a defense on the merits to plaintiff's complaint.
Hyland, Foster & Conmy, Bismarck, for plaintiff and appellant.
Walter O. Burk, Williston, for defendants and respondents.
This is an appeal from an order of the district court of Mountrial County granting the application of the defendant vacating a default judgment and for leave to interpose answer. The action was brought by the plaintiff to determine adverse claims and to quiet title in the plaintiffs to the following described real estate situated in the county of Mountrial and State of North Dakota, to-wit:
Southeast quarter of the southwest quarter (SE 1/4 SW 1/4) West half of the southwest quarter (W 1/2 SW 1/4) of section thirty five (35) in Township One hundred fifty seven (157) north of range Ninety four west of the 5th P. M. and also the South half of the northwest quarter (S 1/2 NW 1/4) and South half of the northeast quarter (S 1/2 NE 1/4) and Lots one (1), two (2) and four (4) all in section five (5) and also Lot four (4) in section four (4) all in Township one hundred fifty six (156) North of Range ninety four (94) west of the 5th P. M.
The complaint is in the statutory form. There is a long list of defendants in this action. A large number of them were nonresidents whose places of residence and post office addresses were not known, and they were served by publication of the summons. Service was had upon the other defendants by personal service or by admission of service. All of the defendants defaulted and judgment was entered in favor of the plaintiff quieting the title in him on the 14th day of February 1952. Three of the defendants Robert H. Tuttle, C. L. Stephens and Robert H. Tuttle as Trustee of the American Coal Briquetting Company, made a motion to vacate the judgment and for leave to answer. The motion to vacate the judgment was heard before the Hon. Geo. A. McGee, one of the district Judges of the Fifth Judicial District of Mountrail County on the 13th day of February 1952. Judge McGee died before handing down a decision in the matter, and it was stipulated by the parties by their respective attorneys that the entire file in said action be forwarded to the Hon. Eugene A. Burdick, one of the Judges of the said district court together with all exhibits introduced upon the motion of the defendants before the late Hon. Geo. A. McGee, also all stenographic records and memorandum which may be in the possession of the clerk of the district court or the official court reporter who had taken the hearing upon said motion; also all briefs of counsel both of plaintiff and defendants. It was stipulated by the parties to the action by their respective attorneys that they waived any and all right thereafter to object to or claim error by reason of the submission of the above entitled action for a decision upon the record made before the Hon. Geo. A. McGee and they agreed to be bound by the order entered by the Hon. Eugene A. Burdick to the same extent and in the same manner as though said motion had been personally tried before him in open court.
The defendants appearing in this proceeding filed affidavits of merits in support of their motion to vacate the judgment and they also filed proposed answers to the complaint. Counter affidavits were filed by the plaintiff resisting the motion to vacate the judgment.
After hearing on the motion Judge Burdick made an order vacating the default judgment and permitting the said defendants to interpose answers to the complaint. From this order the plaintiff appealed.
From the records before us it appears that the plaintiff had acquired the real estate in question from Mountrial County and that Mountrial County had acquired title to the property through tax deed proceedings. In their affidavits of merits and in their proposed answers the defendants specifically deny that the plaintiff is the owner in fee simple of the property described in the complaint. They allege on the contrary that they are the owners of the oil, gas and mineral rights of the premises described in the complaint. Their claim of ownership of the oil, gas and minerals is based upon a lease covering the premises described in the complaint which lease it is alleged was recorded in the office of the register of deeds of Mountrail County, North Dakota on April 8, 1926 at 9:00 A. M., in Book 234, page 97 and that said oil, and gas lease is still in force and effect. The affidavits and the proposed answers allege that the claim of the plaintiff in and to the real property described in the complaint is based upon a purported tax deed from Mountrail County but that said tax deed is wholly defective and void insofar as it purports to affect the oil, gas and minerals of the lands described in the complaint for the reason that the oil, gas and mineral rights in and to said premises were severed by the former owners of said premises in fee simple and that it became the duty of the county auditor, register of deeds and county assessors to assess for taxes, if any there be, the oil, gas and mineral rights separately from the surface or overlying strata of said premises. It is further alleged that the tax deed relied upon by the plaintiff did not affect or cover the rights of these answering defendants for the reason that no notice of expiration or the period of redemption was ever given or served upon them and that the mineral rights of the oil and gas lease were never taxed or assessed and that therefore Mountrail County, North Dakota had no jurisdiction to take any tax title against said oil and gas rights.
The defendants do not challenge the regularity of the tax deed proceedings of Mountrail County, except insofar as it is alleged that notice of expiration of period of redemption was not served upon them.
The affidavit of Walter O. Burk, Williston, North Dakota one of the attorneys for the defendants states that he has examined the records in the office of the register of deeds, in Mountrail County, North Dakota and that he believes and has advised his clients that they have a good and meritorious defense to plaintiff's cause of action; that he believes that the said tax title proceedings had by Mountrail County, North Dakota are null and void as to C. L. Stephens, Robert H. Tuttle and American Coal Briquetting Company for the reason that the mineral interests in the lands involved were severed long prior to the commercement of the tax title proceedings by Mountrail County covering the premises described in plaintiff's complaint and that said mineral interests were never taxed and consequently any tax title proceedings as far as said mineral interests were concerned were null and void.
Atwood Cranston, of Minneapolis, Minnesota, one of the attorneys for the defendants states in his affidavit that he has examined the Statutes of the State of North Dakota and the law affecting the claim of the defendants C. L. Stephens and Robert H. Tuttle and the American Coal Briquetting Company, and from his research he is of the opinion that the oil, gas and mineral rights underlying the premises described in the complaint were severed from the overlying strata. He states further that he has caused the records of Mountrail County, North Dakota to be investigated and found that the oil, gas and mineral rights were...
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