196 N.W. 108 | N.D. | 1923
On October 13th, 1922, the plaintiff; began this action against William Walker and Margaret Walker, his wife, to recover on account of goods, wares and merchandise sold to the defendant William Walker. The complaint alleges that the defendants were husband and wife; that the plaintiff sold to the defendant William Walker groceries, household goods and wearing apparel of the agreed value of $1,701.34; that the defendants promised to pay therefor; that payment has been demanded ; and that nothing has been paid thereon excepting the sum of $177.95, and demands judgment for the balance together with interest thereon. Service was made on both the defendants on October 13th, 1922. Both defendants defaulted, and on December 7, 1922, default judgment was entered for the sum of $1,839.19 and costs, William Walker died on February 7, 1923. On February 8, 1923, the plaintiff procured the issuance of an execution and the sheriff made a levy thereunder on certain real estate belonging to Margaret Walker. On March 15th the defendant Margaret Walker made application to the district court to have the default opened and the judgment vacated, and for leave to answer for herself personally and as administratrix of the estate of William Walker, deceased.
At the time of the making of such application the defendant made and served an affidavit of merits and a proposed answer. In her application and affidavit the defendant set out and alleged that on the 13th day of October, 1922, the date of the service of the summons and complaint on her and William Walker, that the said William Walker was and long prior thereto had been afflicted with a painful and incurable disease — cancer of the stomach; that he was then sick and weak, having recently submitted to a serious surgical operation on account of such disease; that he was incapacitated to take care of his business affairs; that he was operating a large farm; that the defendant Margaret Walk•er, by reason off the infirmity of the said William Walker, was engaged in looking after the operation of the farm, the care of her family and the care and nursing of the defendant William Walker; that she had
After a consideration of the showing as made, the district court
The appellant contends that the order opening the default and vacating the judgment was improvidently made; that it was an abuse of discretion on the part of the trial court; that the answer does not set up a good and valid defense; that in any event, viewing the showing in the light most favorable to the defendants, it appears that the plaintiff is entitled to a judgment in the amount of $800, and that even though it be held that the order opening up and vacating the judgment was properly made, that nevertheless such order should have provided that the judgment remain as a lien upon the property of the defendants for such amounts as might be adjudged against them upon the trial of the cause upon its merits.
The rule is Avell established that under our statute (Comp. Laws 1913, § 7483) before a defendant may have a default judgment opened and vacated, he must affirmatively shoAV that such judgment was taken by reason of mistake, inadvertence, surprise or excusable neglect on his part; that after becoming apprised of bis default, he acted Avith reasonable diligence in seeking relief therefrom; and, third, that he has a good defense upon'the merits. The statutory provision as to the opening up and vacating’ a default is intended to enable a party having a reasonable excuse and acting with diligence, an opportunity to establish any meritorious defense that he may have, and while such statutory provision should be liberally construed to the end of promoting justice, relief under it is a matter of sound judicial discretion, and a trial court, having passed upon the showing made, its order will not be disturbed unless it appears that there Avas an abuse of discretion. Farmers & M. State Bank v. Stavn, 49 N. D. 993, 194 N. W. 689; State Bank v. O’Laughlin, 37 N. D. 532, 164 N. W. 135; Truax v. Alton, 46 N. D. 548, 179 N. W. 992. In this particular case it appears to us plain, considering the. fact of the mortal illness and death of the defendant William Walker, and all the. other circumstances as disclosed,-that there was reasonable cause for the neglect of the defendants in failing to ansAver. Surely, if the facts as set out in the application of - the defendant be true, it would be difficult to find a stronger case of excuse: Every instinct of humanity rises to exculpate the default. The trial
We have considered the proposed answer of the defendants. We are satisfied that it states a defense to a substantial portion of the claim sued upon. We are not concerned with the question as to whether or not the defendants can establish the defense pleaded. In our consideration of the matter here, the affidavit of merits and answer are conclusive. Farmers & M. State Bank v. Stavn, supra; Wakeland v. Hanson, 30 N. D. 129, 161 N. W. 1012. We do not believe that the statute contemplates that one seeking relief under its terms is required to plead a defense to the whole of the cause of action sued upon. If the answer sets out a defense to a substantial portion of such cause of action, it is sufficient. A defendant, having such a defense, should he permitted to avail himself of it. G. S. Congdon Hardware Co. v. Consolidated Apex Min. Co. 11 S. D. 376, 77 N. W. 1022; Kime v. Fenner, 54 Neb. 476, 74 N. W. 869; Gumaer v. Bell, 51 Colo. 473, 119 Pac. 681; Culbertson v. Salinger, 122 Iowa, 12, 97 N. W. 99; 23 Cyc. 963, note 40.
Holding thus, we must hold that there was no error on the part of the trial court in vacating the judgment and grantingTeave to the defendants to answer over. It appears, however, that on the face of the answer, the plaintiff is entitled to judgment for at least a part of the claim sued upon. That being the case, we believe that there should he some assurance that he may not suffer the loss of any advantage of position secured by virtue of the judgment vacated. Therefore, while the-order vacating the judgment should he permitted to stand, nevertheless justice will he done by providing that such judgment- so vacated shall stand as securit-v for any judgment the plaintiff may recover on a trial of the action on its merits.
The order appealed from will be modified accordingly, and so modified, will ho affirmed. Neither party to recover costs on this appeal.