FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, a corporate instrumentality and agency of the United States, Plaintiff and Appellee, v. L. Ivanlee ALBRECHT, Judy M. Albrecht, his wife, and Elbe Industries, a Trust Organization, Defendants and Appellants, Ray Dolan, Harlan Roberge, and First Federal Savings and Loan Association of Grand Forks and Minot, Dеfendants.
Civ. No. 10964.
Supreme Court of North Dakota.
Dec. 18, 1985.
Rehearing Denied Jan. 7, 1986.
379 N.W.2d 266
L. Ivanlee Albrecht, pro se and for defendants and appellants.
ERICKSTAD, Chief Justice.
The defendants, L. Ivanlee Albrecht and Judy M. Albrecht (Albrechts), appeal “the decision rendered on March 6, 1985.” We rеverse the judgment and remand for further proceedings.
Albrechts are apparently appealing from the “MEMO OF SUMMARY JUDGMENT” as this is the only document in the record which is dated March 6, 1985. This memo
We have until recently held that: “[A]n order is appealable only when it comes within the provisions of
On March 9, 1982, the Albrechts executed a promissory note for $40,000 in favor of First Federal Savings and Loan Association of Grand Forks and Minot (FFSLA). This note provided for yearly paymеnts beginning on March 1, 1983. To secure this note, the Albrechts executed a mortgage in favor of FFSLA. This mortgage empowered the mortgagee to foreclose and sell the mortgaged property in the event of default in the payments. On June 6, 1984, the mortgage was transferred to Federal Savings and Loan Insurance Corporation (FSLIC).
The Albrechts failed to make the annual payment due March 1, 1984. In a letter dated and mailed October 23, 1984, FSLIC notified the Albrechts that unless payment was made within 30 days, foreclosure proceedings would be commenced. Apparently the amount in default remained unpaid and FSLIC served by certified mail a summons and complaint which was received by the Albrechts on December 20, 1984. The Albrechts responded with an answer denying each and every allegation made in thе complaint.
FSLIC filed a motion for default judgment against Albrechts and other defendants. Counsel for FSLIC explained during oral argument that this motion was prepared and filed before FSLIC received Albrechts’ answer to the complaint. It was further explained by counsel fоr FSLIC that after FSLIC received Albrechts’ answer, the motion for default was changed to a motion for summary judgment as to Albrechts and to a motion for default judgment as to the other defendants. FSLIC also filed an affidavit of mailing stating that on February 15, 1985, the motion for summary judgment along with a brief in support of the motion for default,1 affidavit of proof, affidavit of identity and non-military service, and notice of motion pursuant to
The Albrechts responded to the summary judgment by filing a motion to vаcate “memo” of summary judgment. This motion was based upon the allegation that the Albrechts did not receive a brief. In the motion, the Albrechts asserted that, as they had not received a brief with the
Albrechts, on appeal, contend they neither received nor were aware of the brief in support of the motion for summary judgment.4 They argue thаt, because they did not receive a brief in support of the motion, they could not respond with a reply brief. Albrechts argue further that the trial court, in granting summary judgment, denied them due process of law because they were not given an opportunity to answer thе motion.
At the time the district court considered the Rule 3.2 motion it appears that it did not have actual as opposed to constructive notice that the brief in support of the motion for summary judgment had not been served on the Albrechts.5 The district court latеr refused to consider FSLIC‘S failure of compliance with Rule 3.2(c) when the Albrechts moved to vacate the memo of summary judgment on the ground that such a motion is not proper.
As we have now held that a party may appeal from such an order, we think it logicаlly follows that we must permit a motion to vacate such an order by requiring trial courts, under circumstances such as present here, to treat the motion as one to vacate the summary judgment. This also allows the court to reach the merits of a case, whiсh we view to be important, especially in a situation akin to a default. Bender v. Liebelt, 303 N.W.2d 316 (N.D. 1981); Sioux Falls Construction Co. v. Dakota Flooring, 109 N.W.2d 244 (N.D. 1961). In Bender we said:
“Decisions on the merits are of course preferable to those by default. City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 330 (N.D.1975). In keeping with the general policy of construing
Rule 60(b) liberally with regard to default judgments, see Suburban Sales v. District Court of Ramsey, 290 N.W.2d 247, 252 (N.D.1980), this court will ‘grant motions to reopen judgments, when promptly made, when the grounds stated satisfy the requirements ofRule 60 for reopening, and when an answer appearing to state a meritorious defense is presented.’ Perdue v. Sherman, 246 N.W.2d 491, 496 (N.D.1976).” 303 N.W.2d at 318.
We affirmed, in Bender, the trial court‘s denial to vacate a default judgment explaining that on appeal one must not only show that the trial court made a “bad” decision, but that it abused the discretion it has in administering the rule. In the instant case the trial judge did not exercise discretion but denied the motion on the basis that such a motion was not permitted
Had the district court in this case believed that it had jurisdiction to entertain the motion to vacate, it may well have granted the motion as excusable neglect under
Should it be argued that under circumstances such as present here it would be more appropriate to remand to the trial court for it to determine in the first instance whether or not the grоunds stated for vacation are adequate, it is sufficient to say that, in the interests of judicial economy and to avoid further delay, we prefer the solution we have fashioned for this case.
For the reasons stated in this opinion the judgment is reversed and the cаse is remanded for proceedings not inconsistent with this opinion.
GIERKE, MESCHKE and LEVINE, JJ., concur.
VANDE WALLE, Justice, dissenting.
I cannot forgo the opportunity to state my observations of what might have happened at the trial court level. It might well be an example of that old adage that he “who lives by the sword dies by the sword.” As the majority opinion notes, the Albrechts never denied receiving the notice of motion and motion for summary judgment, the affidavit of proof, and the affidavit of identity and non-military service. Rather, in the “Motion to Vacate Memo of Summary Judgment,” the Albrechts statеd they had “not received a brief which needed an answer ...” [Emphasis mine.] Technically, that was true under
Although it is obvious to me that the Albrechts rely on a technicality to excuse their failure to respond to the motion for summary judgment, the majority opinion excuses the Albrechts from several “technicalities” in arriving at its conclusion to vacate the summary judgment, to wit: permitting an appeal from a “decision” [which appeal was filed prior to our decision in Olson v. Job Service North Dakota, 379 N.W.2d 285 (N.D.1985), and therefore was not appealable under the previous decisions
However, I am most concerned about the lack of meritorious defenses. Although we pressed at oral argument for those defenses we were given nothing specific by the Albrechts. I admit I am pаrticularly concerned because these are the same Albrechts as those in Albrecht v. First Federal Sav. & Loan Ass‘n, 372 N.W.2d 893 (N.D.1985), who, in a matter involving a mortgage, contended that of a $40,000 loan only $2,000 was in legal tender and the remaining $38,000 was invalid and unlawful “credit or checkbook money.” In that case we held that the Albrechts’ contention was “patently frivolous and devoid of any possible claim upon which relief could be granted.” 372 N.W.2d at 895. We there approved the trial court‘s sua sponte dismissal with prejudice of the Albrechts’ complaint. Here, we asked Mr. Albrecht аt oral argument whether or not the defenses were similar to the allegations made by the Albrechts in Albrecht v. First Federal Sav. & Loan Ass‘n, supra. We have yet to be informed of the meritorious defenses of the Albrechts and I am concerned that on remand they may assert the same or equally frivolous defenses.
Although I concede that the brief need not have been answered because it was not a brief in support of the motion for summary judgment, I do not agree that the motion for summary judgment could be ignored. An allegation of a meritorious defense should be a condition precedent to vacating the judgment, and, because no such allegation has been put forth, I would affirm the judgment of the district court.