100 N.W. 1082 | N.D. | 1904
The plaintiff appeals from an order of the district court of Bottineau county vacating a judgment which he had caused to be entered in this action against the defendant upon default of answer.
Counsel for appellant contends, as grounds for reversal, that (1) the defendant has not offered a sufficient excuse for his failure to answer within the statutory period, and (2) that the motion papers are not legally sufficient. We are of opinion that neither of these objections should be sustained. The action is to recover a balance of $4,095, which the plaintiff alleges is due for labor and
In our opinion, the trial court did not abuse its discretion in holding that the defendant had sufficiently excused its default or error, and in holding that the motion papers were legally sufficient. Section 5298, Rev. Codes 1899, provides that “the court may, * * * in its discretion, and upon such terms as may be just, allow an answer * * * to be made or other act to be done after the time limited by this Code, or, by an order, enlarge such time; and may also within one year after notice thereof, relieve a party from a judgment * * * taken against him through his mistake, inadvertance, surprise or excusable neglect.” It is clear to us that the affidavit attached to the motion papers — and it will be noted that the notice of motion was served before the judgment was entered — furnished ample grounds for ,an extension of time in which to answer, and also to vacate the judgment which was thereafter entered. The default was occasioned solely by the mistake of the chairman of the board of county commissioners as to the day of service in stating that it was the 16th, instead of the 15th, which the sheriff’s return shows was the true date. An error of one day in stating a date is not such an unusual occurance that it can be said to be inexcusable. To so hold would require unusual, if not almost impossible accuracy. It is evident the mistake was an honest one, and the defendant proceeded promptly to correct it. Negligence cannot be imputed to the state’s attorney for not answering sooner, for he made timely service of the answer according to the information he had received. He also moved promptly for relief, even without positive knowledge that he was in fact in default, and before judgment was entered. The citation of authority should not be necessary, but the following cases rest upon a similar state of facts and may be cited in support of our conclusion that the mistake
The objection that there is no áffidavit of merits, and that the affidavit does not set up a valid defense, goes to the form and sufficiency of the affidavit, and not to the fact that no attempt is made to show merits, or to state a defense. We think this objection also is- not well grounded. The affidavit is positive as to the merits of the defense, and the affiant exhibits, as a part of his affidavit, the proposed answer, which, it is conceded, states a defense to at least a part of the plaintiff’s cause of action. The language of the affi
We have treated the default judgment as regularly entered, and tested the order by the rules of practice relating to vacating such defaults. It is a serious question, however, whether the entry of judgment while the defendant’s motion for relief from his default in answering was pending and undetermined was not so irregular as to entitle the defendant to have it set aside on that ground alone, and without showing merits. That view is fairly supported by the following cases: Manwaring v. Lippincott (Sup.) 65 N. Y. Supp. 428; Atchison Ry. Co. v. Nichols, 8 Colo. 188, 6 Pac. 512; Farris v. Walter, 2 Colo. App. 450, 31 Pac. 231; Ridgway v. Horner, 55 N. J. Law, 84, 25 Atl. 386; Thomas v. Douglass, 2 Johns. Cas. 226; Depeyster v. Warne, 2 Caines, 45; Browning v. Roane, 9 Ark. 354, 50 Am. Dec. 218; Mattoon v. Hinkley, 33 Ill. 209; Hosmer v. Hoitt, 161 Mass. 173, 36 N. E. 835. See, also, Freeman on Judgments, section 97; Black on Judgments, section 326. Also Garr, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Prondzinski v. Garbutt, 9 N. D. 239, 83 N. W. 23.
Finding no error or abuse of discretion, the order appealed from will be affirmed.