Bazal v. St. Stanislaus Church

132 N.W. 212 | N.D. | 1911

Spalding, J.

(After stating the facts). The motion to vacate this judgment was attempted to be brought within the terms of § 6884, Rev. Codes 1905, which provides for a court, in its discretion, relieving a party from a judgment obtained against him by his mistake, inadvertence, surprise, or excusable neglect, and the question for determination is whether the facts shown properly bring it within the terms of the statute referred to. It is elementary that the trial court, on such application, must exercise its discretion, but the discretion exercised must be a legal discretion, not an arbitrary one; it must rest upon facts in evidence before it, showing one or another of the grounds for vacating the solemn judgment of a court of record specified by the statute. The mere neglect of a defendant to employ an attorney and serve an answer, all the while knowing that suit has been brought and that an answer is required, without some sufficient and valid reason for the neglect, is no- ground for vacating a judgment. Appellate courts will exercise great caution in reversing an order of a trial court vacating a default judgment, but if it clearly appears that the court was mistaken in vacating it, in a sense which amounts to an abuse of legal discretion, although it may be but a mere mistaken judgment of the extent of its discretion, it is the duty of the appellate court to reverse the order. On the affidavit of the secretary himself, it is nowhere disclosed that he forgot that the action was pending, or that he was ignorant of the fact that something would have to be done within thirty days from the date of service to protect the rights of the defendant corporation. None of the usual excuses for failing to act are presented; nothing is disclosed as an apology for not acting, except that he was busy with his fanning operations. If this is an adequate excuse, the statute permitting entry of default judgments at the expiration of thirty days after service made upon any defendant, during the different seasons when engaged in active farming operations, better be repealed, and courts be first required to ascertain whether it has been convenient for the defendant to give the action his attention.

There is no thrifty farmer in this state who is not busily engaged during such seasons ; and not one of them could stop to secure an attorney to attend to litigation without interfering with the operations of his farm. This is not the kind of excuse which the statute contemplates as furnishing a ground for setting aside a default judgment. To recognize such an excuse would be in effect to hold that a judgment is no more binding and of no more stability than any unofficial writing or other document, and that it does not do what it is intended to do, in the absence of a valid excuse for vacating, — end a controversy. The mere inconvenience attending the engaging of an attorney to make a defense is not an adequate excuse for failure to defend. It is urged by the respondent that the decision of this court in Citizens’ Nat. Bank v. Branden, 19 N. D. 489, 27 L.R.A.(N.S.) 858, 126 N. W. 102, is authority for sustaining the order appealed from in this case. We do not so consider it. We think in the opening of judgment in that case the court went as far as it is justified in going, yet the facts clearly distinguish it from the case at bar, and there are authorities sustaining the vacating of the judgment in that case. The neglect in that case was the neglect of the attorney, occasioned by his being engaged in a distant part of the state in the conduct of the defense in a trial for murder, and it was held that the defendant, having placed the whole matter in tbe hands of the attorney, had done all he could do, and his attorney’s failure to answer, under the circumstances, and caused by his forgetfulness, constituted a surprise to the defendant, from which the court should relieve him. In the case at bar, no forgetfulness is alleged, even on the part of the party served, and he had employed no attorney. But we do not need to rest our decision upon the neglect of the secretary of the defendant corporation, because it is clearly made to appear that the president of the board of trustees was fully aware of the pendency of the action, and that a defense would have to be interposed. It, however, does not appear that it was made his duty, as such president, to act further than authorized by the board to act. As to the knowledge of some of the other members of the hoard of trustees, the evidence is in conflict, while it is not shown that there were not still other members whose affidavits are not here, who knew about the suit.

Taking the evidence altogether, it is clear that no excuse is furnished justifying the vacation of the judgment. If we sustain the order vacating it, it will furnish a precedent for vacating any default judgment entered, when the only excuse is that the defendant knowingly permits judgment to be taken because it is more convenient to do so than to give it the necessary attention.

The respondent also contends that, the defendant being a corporation, its neglect occasioned by the failure of one of its officers h> give the matter attention, or call it to the attention of the board, does not bring it within the general rule applicable to vacating judgments; and that this is particularly so in view of its being a religious corporation, where the negligent officers are presumably serving without compensation and only as a matter of public spirit or religious duty; and Farrar v. Consolidated Apex Min. Co. 12 S. D. 237, 80 N. W. 1079, and G. S. Congdon Hardware Co. v. Consolidated Apex Min. Co. 11 S. D. 376, 77 N. W. 1022, are cited as authorities. But there is a marked distinction between those cases and the case at bar. In those cases the service was made upon a director who appears not to have been on friendly relations with the officers of the corporation, and to have insisted that it had no defense; and it was there held that his failure to notify the corporate officials of the service upon him constituted surprise on the part of the corporation, which justified relieving it from the default judgments; but in the case at bar, as we have indicated, it is clear that the officials of the corporation had not only notice but knowledge of the pendency of the action and of the necessity of giving it attention. Hence, whether the secretary apprised them of the service of the papers or not is immaterial. The authorities mentioned are the only authorities cited .by the respondent to sustain the order of the lower court, except Griswold Linseed Oil Co. v. Lee, 1 S. D. 531, 36 Am. St. Rep. 761, 47 N. W. 955. The latter case comes much nearer being in point than either of the others, yet there is a clear distinction between it and the case at bar, and while we approve the holding of the court in that case, to the effect that the provisions of the statute referred to should be liberally construed to the end that eases may have a trial upon the merits, and justice be not denied, yet it seems to us that our sister court was more liberal in tbe application of tbe rule of tbe statute than any authority wbicb we have been able to find supports. Tbe sympathies of a court in all matters of this kind are almost invariably enlisted in behalf of tbe party who seeks tbe relief, and this case is no exception, but still we feel that to sustain the vacation of this judgment would result in perverting tbe powers which are reposed in courts of record, and greatly increase and prolong litigation, rather than to terminate it. While we hesitate in such cases to overrule the judgment or discretion of the trial court, yet we feel compelled to do so in the case at bar, and hold that in a legal sense the discretion reposed in that court was abused. See Davis v. Steuben School Twp. 19 Ind. App. 694, 50 N. E. 1.

The order appealed from is reversed.

Morgan, Oh. J., not participating.