126 N.W. 102 | N.D. | 1910
A summons and a complaint, alleging causes of action upon three promissory notes, were served upon defendant and appellant on October 23, 1908. Shortly thereafter he employed W. S. Lowry of Hankinson, as his attorney, and directed Mr. Lowry to arrange for the services of and associate with him in the defense of the action W. S. Lauder, an attorney of Wahpeton. Mr. Lowry made the arrangement directed by his client with Mr. Lauder, and paid him a retaining fee. The understanding, between the two attorneys was that Mr. Lauder should have exclusive charge of the preparation and service of an answer. Mr. Lauder avers that he intended in good faith, within the time allowed by law, to prepare and cause to be served on plaintiff’s counsel a formal answer to the complaint. On November 17, 1908, in the course of his professional duties, he went to Napoleon, Logan county, and entered upon the defense of a criminal action/ in which the charge against the defendant was murder in the first degree. He was continuously occupied in the trial of this case until December 4, 1908, during which period the entire labor of the defense devolved upon him, and his attention was so absorbed in this work that he forgot about this action, and entirely overlooked the fact that the time for answering therein expired on November 22, 1908, and failed to prepare or serve an answer in this case, or to give the matter attention in any particular whatever, until after the close of the murder tidal. In the meantime, on November 27, 1908, the plaintiff in this case applied to the district court for judgment in default of answer, and pursuant to an order for judgment dated as of that day final judgment herein was entered on November 30, 1908. This judgment was docketed, and plaintiff caused execution to issue, and levied it upon certain property of the defendant held under attachment, and proceeded to sell the same. On December 5, 1908, Mr. Lauder was informed for the first time that judgment by default had been entered against the defendant. On the 7th of December thereafter he served upon plaintiff’s attorney affidavits showing facts substantially as narrated above, and on an order to show cause applied to the district court to vacate and open up the judgment and permit defendant to interpose a defense to the action. With the affidavits was served a proposed answer in the action verified by the attorney, which alleged as a defense to all the notes declared upon that, on the 18th day of June, 1908, after due and regular proceedings under the bankruptcy laws of the United States in
Plaintiff contends, so far as the first order in concerned, that the showing made by appellant was entirely insufficient to warrant the opening up of a judgment entered by default under the conditions shown, and that all material points presented upon the second application were res adjudicata by reason of the order first made. But, aside from this point, and of that presented on the first application of the insufficiency of the affidavit of merits, appellant contends there was on neither application a sufficient showing of cause to warrant any action other than that taken by the district court. We have no doubt of the power of the district court to set aside its order of December 29, 1908, and to permit appellant to renew his motion as though made in the first instance. Whether or not the affidavit of merits made on the first application is sufficient we need not consider, as any deficiency that might then be said to exist was corrected upon the second application. We will therefore con
The district court is authorized, “in its discretion and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” Rev. Codes 1905, Sec. 6884. In New York, Wisconsin, Vermont, California, Indiana, North Carolina, and several other states statutes in terms exactly or substantially similar to this have been in force for many years; and the courts of these states are in substantial agreement in a general view of the spirit in which they are to be administered, which may be thus expressed: “That the statutes are remedial in character, intended to furnish a simple, speedy and efficient means of relief in a most worthy class of cases; that the ‘discretion’ referred to is not a mental discretion to be exercised ex gratia, but is a legal discretion, to be exercised in conformity to law.” Freeman on Judgments (4th Ed.) Sec. 106. Or, in other words, it is a “legal discretion” which as declared by Chief Justice Marshall, is to be exercised in discerning the course and spirit of the law, which, when discerned, it is the duty of the courts to follow. “It is to be exercised, not to give effect to the will of the judge, but to that of the law.” Tripp v. Cook, 26 Wend. (N. Y.) 152.
Pursuant to this construction, an appellate court will first examine a case for the purpose of determining whether or not under the facts shown the discretion vested in the district court has been arbitrarily or oppressively exercised; or, in other words, whether or not its order evinces an abuse of discretion. Unless such abuse of discretion appears, the order, if it opens and vacates a judgment entered by default for the purpose of permitting a meritorious defense, will not as a rule, be disturbed. In a case such as this, however, where the court has refuged to open up a default and permit a defense upon the merits, even though the discretion of the trial court does not seem to have been exercised intemperately, arbitrarily, or in a manner palpably erroneous, the reviewing court will' extend its inquiry further, and determine whether or not upon the facts shown, in the interests of justice and right under the liberal construction which the spirit of the statute seems to commend, it should disturb an order which has the effect of preventing,a de
It is readily apparent that from the very nature of the case it is impossible, except in the most general terms, to frame a rule of procedure applicable to every state of fact presented by an application of this character. A general rule having unanimous support seems to be that, if the moving party makes a clear and unquestionable showing that he has a good defense or cause of action on the merits, of the benefit of which he has been deprived without fault on his part, the trial court cannot, in the exercise of a sound judicial discretion, deny him the relief prayed for; and, if it has done so, its action will be reversed. On the point, however, of what constitutes fault on the part of the moving party, and what may be said to constitute surprise, mistake, inadvertence, and excusable neglect, the cases are in irreconcilable conflict. The New York and North Carolina courts hold that, if the party himself is free from fault, the ignorance, forgetfulness, or neglect of his attorney will not be imputed to him to such degree as to prevent relief. The liberality of the courts of New York particularly in the matter of opening judgments has been so great as to provoke criticism by a learned text-writer, who declares that judgments in that state “seem to be regarded not as inviolate and enduring testimonials, but as temporary structures to be torn down, remodeled, or rebuilt whenever the builders feel competent to improve the original workmanship or design.” Freeman on Judgments (4th Ed.) Sec. 111. In the courts of states other than the two named the neglect of counsel regularly employed and having charge of the case is uniformly treated as the neglect of the party, and no mistake, inadvertence, or neglect attributable to the attorney can be successfully used as a ground for relief, unless it would have been to the same degree excusable in the client. Some of the North Carolina -cases regard ignorance or neglect on the part of the attorney as in the nature of “surprise” within the meaning of the statute, and afford relief from the judgment on that ground. Griel v. Vernon, 65 N. C. 76; Taylor v. Pope, 106 N. C. 267, 11 S. E. 257, 19 Am. St. Rep. 530.
It will be observed that the facts of this case do not show ignorance of rights, mistake of law, or wanton neglect, either on the
The contention that a discharge of the debt sued upon by a court of bankruptcy is not a meritorious defense is in this state disposed of. Such defense is not more technical or less favored by the courts than that of the statute of limitations which is held by this court to be a meritorious defense. Wheeler v. Castor, 11 N. D. 347, 92 N. W. 381, 61 L. R. A. 746. The plaintiff in a trial upon the merits will be given opportunity to show a subsequent promise to pay the debt. In any event, the court could not, in an application of this character, inquire into the merits of the defense. Kitzsman v. Minn. Threshing Co., 10 N. D. 26, 84 N. W. 585. As the proceeds of the property taken upon attachment have been paid into court, and are held subject to the event of this action, no substantial prejudice can accrue to plaintiff by a trial on the merits. While the facts shown cannot be said to afford strong and unmistakable ground for relief, and the discretion of the trial court in denying the motion does not seem to have been harshly or arbitrarily exercised, we regard it as a case in which the circumstances are such as to lead a court to hesitate before it refuses to open the judgment; and in such case “it is better, as a general rule, that the doubt should be solved in favor of the application.” Grady v. Donahoo, 108 Cal. 211, 41 Pac. 41.
The order of the district court is reversed, and it is directed to vacate the judgment dated November 27, 1908, and to permit the defendant and appellant to file the answer served herein, and to 'defend the action. The costs of this appeal will abide the event of the action.