208 N.W. 852 | N.D. | 1926
This is an appeal from an order vacating a default judgment and granting leave to the defendant to answer over.
In May, 1923, the plaintiff began an action in conversion against the defendant. Summons and complaint were sent to the marshal of *110 the village of Grenora, Williams county, North Dakota, for service. The originals were returned to the plaintiff with proof of service in due form. No answer was served or appearance made, and on July 10th judgment by default was entered against the defendant. Defendant had no notice of this judgment until November, 1924. On April 11, 1925, he moved to vacate the judgment and for leave to answer. This motion was made upon a good proposed answer, a sufficient affidavit of merits, and supporting affidavits. Hearing was had, plaintiff appearing and resisting, and on June 12th, 1925, the district court granted the motion. This appeal is from the order vacating the judgment and granting leave to the defendant to answer.
It appears from the showing made by the respective parties that the defendant was a farmer residing in Montana. He received his mail in the village of Grenora, North Dakota. Ben Anderson was the village marshal. He was also the village postmaster. The summons and complaint were sent to him by the plaintiff for service upon the defendant. Anderson was inexperienced in the service of papers. On May 16th, 1923, defendant went to the postoffice to get his mail. Anderson, through the delivery window, handed his mail to him, and with it a copy of the summons and complaint in an unsealed envelop. Anderson did not advise the defendant of the contents of the envelop, nor that he was serving process upon him. Defendant received this envelop without knowledge of its contents. He was busy at his farm work. He thought that the envelop contained advertising matter of some sort so paid no attention to it and put it aside. He did not become aware of its contents until some time later — in harvest time. He was inexperienced in such matters and believed that nothing could be done by him then since the time to answer was long past. He was not advised and did not know that judgment had been entered against him until in November, 1924. Then plaintiff's agent told him that a judgment had been entered against him and that an execution had issued. However, defendant did nothing regarding the matter until April, 1925, when he employed counsel and applied to have the judgment vacated and for leave to answer. He did not do this earlier because he was ignorant of his rights in the matter. In the meantime, and in March, 1925, plaintiff's agent had written him that unless the judgment was *111 paid it would proceed under the execution, and having received no reply again wrote him to the same effect about the first of April.
Relief may be had from a judgment on default under § 7483, Comp. Laws 1913, where such judgment was taken through mistake, inadvertence, surprise or excusable neglect. Applications for relief under this statute are addressed to the sound judicial discretion of the trial court, and the trial court's ruling in that regard will not be disturbed on appeal unless it plainly appears that in making it there was a manifest abuse of discretion. See Burgett v. Porter,
CHRISTIANSON, Ch. J., and BIRDZELL, BURKE, and JOHNSON, JJ., concur. *113