129 N.W. 75 | N.D. | 1910
(after stating the facts as above). In the light of the above facts and showing, we are required to review the action of the trial judge in denying defendant’s application, and we must do this in accordance with well-settled rules repeatedly announced by this court in prior decisions, a brief reference to which will be here made. In Fargo v. Keeney, 11 N. D. 484, 92 N. W. 836, Mr. Chief Justice Wallin, in speaking of the scope of the review by this court, of orders such as this, said, in referring to § 5298 of the Codes which is § 6884, Rev. Codes 1905: “That section provides that said court may, ‘in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.’ This language clearly confers the requisite authority upon the district court, in furtherance of justice, to relieve a party from a judgment in any case where the same was. taken against him through ‘his mistake, inadvertence, surprise, or excusable neglect.’ Therefore the question left for determination is one of fact, viz., whether the trial court erred in ruling that the judgment in this case was so taken. In deciding this question it should be premised that, where an application to vacate a judgment or order is not based upon irregularities of procedure, but is placed exclusively upon the ground of mistake, surprise, inadvertence, or excusable neglect of the moving party, such application under the authorities is an appeal to the favor, and is not in the nature of an application based upon a
In Keeney v. Fargo, 11 N. D. 119, 105 N. W. 92, the present chief justice of this court, among other things, said: “Courts have a wide-discretion relating to granting or withholding relief in such cases, which will not be disturbed, except on a showing of an abuse of discretion. Nichells v. Nichells, 5 N. D. 125, 33 L.R.A. 515, 57 Am. St. Rep. 510, 61 N. W. 73; Smith v. Wilson, 87 Wis. 11, 57 N. W. 1115.”
This court has very recently had occasion to give expression of its views upon the rule above referred to. Citizens’ Nat. Bank v. Branden, 19 N. D. 189, 27 L.R.A.(N.S.) 858, 126 N. W. 102. Among other things it was there said: “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,” Under the facts in that case it was held that the defendant was in no manner guilty of a lack of due care and diligence, and that it was solely through the inadvertence and ex
Another rule equally well settled is that there must not only be diligence in preventing a default, but there must be diligence in making the application to be relieved from such default after notice thereof. “It is well settled in cases of this kind, that the moving party has the burden of showing diligence, and, unless it is shown affirmatively, the court will not ordinarily exercise its discretion in his favor.” Wheeler v. Castor, 11 N. D. 347, 61 L.R.A. 746, 92 N. W. 381, citing St. Paul Land Co. v. Dayton, 39 Minn. 315, 40 N. W. 66; Gerish v. Johnson, 5 Minn. 23, Gil. 10. The court there expressly approved the rule announced in 6 Enc. Pl. & Pr. p. 189 as follows: “It is not sufficient for the applicant to show a case within the statute of relief and a good ■defense on the merits. He must also show proper diligence in prosecuting his remedy.” See also Keeney v. Fargo, 14 N. D. 423, 105 N. W. 93. The contention that, -if the application is made within a year after notice of the default, it is in time, notwithstanding the applicant fails to use diligence in applying for the relief, is contrary to the express holdings of this court. Such prior decisions are clearly sound and merit our unqualified approval.
It is our plain duty, therefore, not to interfere with the exercise by the trial judge of the discretion vested in him, unless we are able to say, from the showing made, that there was a clear and manifest abuse 'of such discretion. The burden was upon the applicant to affirmatively show diligence prior to the default, and also to show such diligence after the default in seeking relief therefrom, or he must show facts -excusing the exercise of such diligence. A failure to make such showing will ordinarily not only justify, but require, the court to exercise its discretion in denying the application. Tested by these rules we are required to determine from the facts whether the trial judge abused his discretion in denying appellant’s motion.
Upon the former hearing a majority of the court arrived at a conclusion adverse to appellant’s contention. Upon a rehearing and re-argument of the case, we have reached an opposite conclusion. More mature deliberation has served to convince us that, under the showing, appellant cannot rightfully be charged with any degree of negligence
The order appealed from is accordingly reversed, but the judgment will be permitted to stand as security for any judgment that plaintiff may finally recover.
I cannot concur in the conclusion reached by the court. On the facts recited in the majority opinion I think that there was a contract of employment and no misunderstanding as to the fact that there were two suits. There was neglect that has not been excused in not answering or demurring in time, and therefore clearly no abuse of discretion in refusing to set aside the default judgment.