112 N.W. 993 | N.D. | 1907
This is an appeal from that portion of an order made by the district court of Barnes county on January 2, 1907, imposing term costs of $100 on plaintiff as a condition to the vacation of a default judgment theretofore taken against the plaintiff; appellant’s contention being that this portion of the order was. an abuse of discretion. The facts, as stated in app'ellant’s brief and conceded to be correct by respondents’ counsel, are as follows: On December 22d, being a regular day of the. December term, the case was called for trial and defendants appeared in person and by their attorneys, Parks & Olsberg. The plaintiff did not appear either in person or by attorney, and a jury was impaneled and sworn to try the cause, and the jury returned a verdict in favor of the defendant, and judgment was ordered and entered thereon against plaintiff in the sum of $61.45, costs and disbursements. On December 26th, on application of plaintiff’s counsel, an order was issued by the district court requiring defendants to show cause on December 27th, at 10 o’clock a. m., if any they had, why plaintiff should not be relieved from the judgment taken against it. Upon the hearing of such order to show cause the order complained of was made. Plaintiff’s counsel, Turner & Wright, reside in the city of Fargo. This firm were attorneys in eight cases, upon the calendar of this December term of said court, of which five, including the case at bar, were jury cases, and they were ready for trial in each of said cases. A day or two before the ooening of said term, Mr. Wright, the member of said firm having charge of these cases, wrote the state’s attorney of said county relative to the time which would probably be consumed in the trial of criminal cases, and was informed that such cases would be moved for trial at the opening of the term .and disposed of as rapidly as possible. Fourteen criminal cases appeared on said calendar. On December 14th, Mr. Wright proceeded to Valley 'City, where he remained on other business until the evening of December 15th.
In the light of the foregoing facts it is too clear for discussion that the trial judge properly granted plaintiff’s motion to vacate such -default judgment. Indeed, to- have denied this relief would have been a manifest abuse of discretion. Respondents’ counsel do not contend to the contrary, but they assert that the court, in imposing terms of $Í00 as a condition to- the granting of such relief, acted within a sound discretion, and hence that such order should not be modified by this court. Was it an abuse of discretion to impose any terms? 'And, if not, w-ere the term-s imposed reasonable? These are the sole questions for our determination. It is true, as -contended for by respondents’ counsel, that trial -courts in matters of this kind are usually vested with a broad discretion; but it is well settled that such -discretion must be exercised within t'he bounds of reason and in furtherance of justice. It appears that respondents were in- no- manner to blame for tire situation in which the parties find themselves. Respondents’ counsel -did not force the -case to trial, but, on the other hand, it appears that -they were entirely willing to await th-e arrival of die belated train carrying plaintiff’s -counsel; but th-e court insisted upon disposing of the case at once. It would be manifestly unfair, therefore, to defendants, to vacate such default and reinstate the case for trial without the imposition of some terms. On the other hand, it is a hardship t-o p-laintiff 'to be forced to pay term
The trial court is direoted to modify the order appealed from to conform to this opinion; the costs -of this appeal to abide the final result o'f the case.