Warren v. Resaake

• Decision Date: 24 April 1926
• Docket Number: No. 5069.,5069.
• Citation: 208 N.W. 564,54 N.D. 65
• Parties: WARREN et al. v. RESAAKE et al. HODGE v. ABDELLAH.
• Court: North Dakota Supreme Court

54 N.D. 65

208 N.W. 564

WARREN et al.

v.RESAAKE et al.

HODGE

v.ABDELLAH.

No. 5069.

Supreme Court of North Dakota.

March 26, 1926.

Rehearing Denied April 24, 1926.

Syllabus by the Court.

An application, under section 7483, C. L. 1913, to be relieved from a default judgment on the ground of mistake, inadvertence, surprise, or excusable neglect made by a defendant who at no time appeared or answered in the action, and against whom judgment was taken by default for want of appearance or answer, must be supported by an affidavit of merits.

Where an application is made by a defendant under section 7483, C. L. 1913, to be relievedfrom a default judgment on the ground of mistake, inadvertence, surprise, or excusable neglect, the court may, in the exercise of sound discretion, require the moving party to resort to his remedy by action. Campbell v. Coulston, 124 N. W. 689, 19 N. D. 645, followed.

Appeal from District Court, Mountrail County; Moellring, Judge.

Action by J. W. Warren and another against M. Resaake and others. Default judgment for the plaintiffs. From an order granting the motion of defendant Sied Abdellah to vacate the jugdment, Solomon Hodge, assignee of the judgment, appeals. Reversed without prejudice to the right of the defendant to maintain an equitable action for relief.

F. F. Wyckoff, of Stanley, for appellant.

R. E. Swendseid, of Stanley, for respondent.

PER CURIAM.

This is an appeal from an order vacating a default judgment entered against the defendant Sied Abdellah. The facts are substantially as follows: On October 25, 1913, the summons and a duly verified complaint in the above-entitled action were served personally upon the said defendant Sied Abdellah, within said Mountrail county, by the sheriff of said county. The action was brought to recover the amount due on several promissory notes, aggregating in all $1,500, claimed to have been executed by the defendants and payable to the order of the plaintiffs. No appearance was made by the defendant Abdellah, or in his behalf; and on December 9, 1914, judgment by default was rendered against him for the amount claimed in the complaint. Subsequent to the rendition of the judgment the attorney of record for the plaintiffs died, and the plaintiff J. W. Warren also died. The estate of said J. W. Warren was duly probated and final decree of distribution entered. Subsequent to the entry of said final decree of distribution one Solomon Hodge, the appellant here, purchased the judgment and took a written assignment thereof from each of the heirs of said J. W. Warren, deceased, and from Lillian Warren, the other plaintiff in this action, which said assignments transferred and assigned said judgment to Hodge. On October 7, 1924, the said Solomon Hodge filed an affidavit in the office of the clerk of the district court renewing the said judgment.

On September 19, 1925, an execution was issued upon said judgment, and certain property of the said defendant Abdellah seized under such execution. Thereupon the said Abdellah moved that the judgment be vacated, and that he be permitted to interpose an answer. On November 24, 1925, the court made an order granting such motion, and this appeal is from the order so made.

[1] As a part of his moving papers the defendant submitted an answer wherein he denies each and every allegation of the complaint, and, as an affirmative defense, pleads that there has been an entire failure of consideration for the promissory notes in suit; that such notes were given as consideration for a certain contract for deed wherein the plaintiffs agreed to sell to the defendants certain real property in the city of Stanley in this state; that such property was subject to an existing mortgage; and that subsequently the mortgage was...