Trautman v. Keystone Development Corp.
| Decision Date | 29 February 1968 |
| Docket Number | No. 8408,8408 |
| Citation | 156 N.W.2d 817 |
| Parties | Elmer TRAUTMAN, Plaintiff and Appellant, v. KEYSTONE DEVELOPMENT CORPORATION and Wayne Jennings, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
An order granting a motion to vacate a default judgment, which order permits an answer to the complaint or other responsive pleading, is interlocutory and therefore not appealable.
Thompson, Lundberg & Nodland, Bismarck, for appellant.
Rausch & Chapman, Bismarck, for respondents (appearance in trial court only).
ERICKSTAD, Judge (on reassignment).
The plaintiff, Elmer Trautman, appeals from an order of the District Court of Burleigh County dated November 15, 1966, in which the court vacated a judgment entered in the above-entitled action and granted permission to the defendants, Keystone Development Corporation and Wayne Jennings, to interpose an answer or other responsive pleading to the complaint.
The complaint upon which the default judgment was based asserted that Mr. Trautman had entered into a contract to buy four lots from the defendants and that at the time of the execution of the contract he paid them $1,000, which was to be applied on the purchase price of the last of the four lots to be purchased by him; that Mr. Trautman purchased two of the lots, for which he paid the full purchase price, but that later the defendants sold the other two lots to a third party, thereby making conveyance of those lots to Mr. Trautman impossible; and that Mr. Trautman had repeatedly demanded either conveyance of those lots or a return of the $1,000, but that the defendants refused. In the prayer for relief the complaint asked for judgment against the defendants in the sum of $1,000, with interest from February 1, 1965.
When neither the corporation nor Mr. Jennings interposed an answer nor appeared in any manner following the service of the summons and complaint upon Mr. Jennings as president of the corporation and upon him as an individual on June 28, 1966, Mr. Trautman proceeded to obtain a default judgment on July 25, 1966. On September 8, 1966, the defendants served upon the attorneys for Mr. Trautman a motion which asked the court to vacate the judgment and permit the defendants to interpose an answer or other responsive pleading. In addition, the notice of motion, an affidavit in support of the motion, and an answer were served upon counsel for Mr. Trautman on that date.
The affidavit attempted to set forth facts disclosing excusable neglect which would justify the court in relieving the defendants from the judgment under N.D.R.Civ.P. rule 60(b). The affidavit and the answer also included what the defendants thought to be a meritorious defense. In resistance to the motion a return was made, and affidavits of Mr. Trautman and his counsel were filed. On this record the district court entered the order granting the motion to vacate the judgment. It is from this order that the appeal is taken.
On appeal, counsel appeared for Mr. Trautman, presented oral argument, and filed a brief on his behalf. No appearance was made for the defendants nor was any brief filed in their behalf.
Mr. Trautman's specifications of error, oral arguments, and the arguments presented in his brief were mainly to the effect that the trial court abused its discretion in granting the order.
In support of his contention that the trial court abused its discretion in granting the motion to vacate the judgment, Mr. Trautman argued that the evidence submitted was insufficient to show excusable neglect and a meritorious defense, and that without such a showing the defendants are not entitled to relief...
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Wahpeton Public School Dist. No. 37 v. North Dakota Ed. Ass'n
...and the Court will dismiss the appeal on its own motion, whether or not the point is raised by the respondent. Trautman v. Keystone Development Corporation (N.D.), 156 N.W.2d 817; Application of Hvidsten Transport, Inc. (N.D.), 113 N.W.2d 73; Schrock v. Roy (N.D.), 111 N.W.2d 703; Ferguson ......
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Fritz v. Hassan, 10082
...of an unappealable order, our preference to reach the merits cannot have any bearing on the matter. In Trautman v. Keystone Development Corporation, 156 N.W.2d 817, 818 (N.D.1968), we said that questions raised in an appeal of an interlocutory order "are not before us," and in Spence v. Nor......
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Suburban Sales & Service, Inc. v. District Court of Ramsey County
...is conceded by all the parties that an order vacating a default judgment is not, by itself, appealable. In Trautman v. Keystone Development Corporation, 156 N.W.2d 817 (N.D.1968), this court had under consideration an appeal from an order of the district court vacating a default judgment. T......
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Argenti v. Buller (In re Interest of Buller)
...previously entered, leaving an action pending below, is purely interlocutory and is not appealable."). In Trautman v. Keystone Dev. Corp. , 156 N.W.2d 817, 818-819 (N.D. 1968), this Court held an order vacating a judgment was not final and appealable when the order was not decisive on the q......