167 N.W. 366 | N.D. | 1918
Lead Opinion
Appeal from the district court of Morton county, J. M. Hanley, Judge.
This is an appeal from an order of the court requiring the defendant and appellant to pay attorneys for the plaintiff the sum of $250 two days prior to January 18, 1917. The action is one brought by the plaintiff against the defendant to recover $20,000 for personal injuries alleged to have been received by the plaintiff while an employee of the defendant in its roundhouse at Mandan, North Dakota. The injuries are alleged to have occurred by reason of the negligence of the
The summons and complaint were personally served upon the defendant in Hettinger county, North Dakota, on the 18th day of September, 1916, by'the sheriff of said county. At the same time the summons and complaint were served upon the agent of the defendant at Mott, North Dakota, there was also served upon the defendant by service upon its same agent, a notice to take depositions in the action on September 22, 1916. The defendant through oversight and inadvertence, which it fully explains by affidavits on its behalf, did not answer the complaint of the plaintiff within thirty days. The plaintiff applied to the court for an order of default and submitting damages to a jury. The order of default was made by the court on the 23d day of October, 1916. The order provided that the defendant having failed to give any notice of appearance and the plaintiff having made application to the court for a default judgment and for an assessment of damages, and having consented that the matter be submitted to a jury of not more than four persons qualified to act as jurors, and the plaintiff having guaranteed the costs of calling a special jury of four persons, the court ordered that a special term of the district court for the county of Morton be called for the 26th day of October, 1916, at 2 o’clock p. m., and directed the clerk of the district court of Morton county to draw and summon a sufficient number of persons, to wit, twelve, possessing the qualifications to appear at the court room at Mandan on October 26, 1916, at 2 o’clock p. m., to assess the damages of the plaintiff. The order also further showed that more than thirty days had expired since the service of the summons and complaint, and the defendant had wholly failed to serve an answer or demurrer to the complaint. The defendant
The first assignment of error by the appellant in this case is: “That the court erred in malting the order appealed from herein, requiring this defendant and appellant to pay to attorneys for the plaintiff the sum of $250 two days prior to January 18, 1917.” Second: “The court abused its discretion in making its order herein requiring-the defendant and appellant to pay to the attorneys for this plaintiff the sum of $250 two days prior to January 18, 1917, or be in default.”
We are of the opinion that either of the errors assigned is sufficient to reverse the order of the court. The matters contained in the appeal will be considered first upon their merits. The respondent claims that the order of the lower court imposing terms should be sustained for three reasons: First, plaintiff had not made application to the court for judgment; it had only applied to the court for an adjudication that the defendant was in default and for the calling of the jury to
This action is one to recover money. The question now to be determined is whether the defendant gave any notice of appearance in the action. The summons, complaint, and notice to take depositions were served on the defendant through its agent on September 18, 1916. The deposition was to be taken September 22d, and was taken September 22d before the justice of the peace. Mr. Conmy, attorney for the defendant, appeared at the taking of such deposition for the defendant. Conmy so stated to Murray, attorney for the plaintiff, on the 22d day of September, at the Nigey hotel in the city of Mandan, at which time Conmy had gone to Mandan to assist in the taking of depositions and representing the defendant in the taking of such depositions. The respondent claims that such appearance at the taking of the depositions did not constitute a general appearance in the case. The depositions were taken before a justice of the peace, but it must be remembered that the justice of the peace was not the court which had jurisdiction of the action. In this connection it may be well for us to examine § 7438, Comp. Laws, 1913, which is as follows: “From the time of the service of the summons in a civil action or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and io have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons
The order of the District Court appealed from is reversed, with costs.
Concurrence Opinion
(concurring). This is an appeal from the conditions of an order setting aside a default. The condition imposed was the payment of $250 as costs of the motion. It is a personal injury suit. It is brought to recover $20,000 as damages sustained by the plaintiff when a roundhouse employee of defendant. In this and in another similar case to recover $25,000, on September 18, 1916, at Mott, North Dakota, the summons and complaint was served on the defendant’s agent, with a notice of the taking of a deposition on September 22, 1916. The depositions were duly taken before a justice of the peace.
By inadvertence no answer was served within thirty days, and on October 20th, the day after the time for answering expired, plaintiff’s-attorney made an affidavit of default and on October 23d, the court made an order for the assessment of damages by a special jury on October 25th at 2 o’clock p. m. Accordingly a special jury was summoned at an expense which appears enormous and illegal; mileage $55.80;. livery $70. One hundred and twenty-five dollars and eighty cents, in addition to a good salary, is the pay of one day for a man with a Ford automobile!
At the time set for the assessment of damages, defendant’s counsel appeared with affidavits excusing the default, and in each case obtained an order extending the time to answer on condition of paying $250. A motion is made to dismiss the appeals on the ground that as defendant accepted the benefits of the orders he cannot appeal from the conditions, but the conditions are manifestly unreasonable and contrary to law. A party docs not have to buy justice at such a price. The statute is that, upon a motion in an action or proceeding, costs may be awarded not exceeding $25. Twenty-five dollars is the limit and $10 is the common allowance. But in this case there was no good reason for the allowance of any costs. The default proceedings were grossly irregular, and were not in accordance with good faith and professional etiquette. The attorneys for the plaintiff well knew that the default in serving an answer was a mere inadvertence, and that in a damage suit for so large a sum no responsible party would purposely suffer a default judgment. They knew that Watson, Young, & Conmy were attorneys for the Northern Pacific Bailway Company, and that in each of the actions Conmy had appeared as an attorney for the defendant, and had stipulated with them concerning the taking of a deposition, and that was a full and complete appearance in the ease. When a party, makes default in serving an answer to an amended complaint, he must be given ten days’ notice of an application for judgment. § 7175. When a defendant gives notice of appearance, he is entitled to eight days’ notice of an application to the court for the relief demanded in the complaint. Comp. Laws, § 7600.
The service of an answer, a notice to take depositions, or a stipula- •
Counsel for the plaintiff knew well that Watson, Young, & Conmy were attorneys for the defendant, and that their failure to answer on time was a mere inadvertence. They knew that without any expense they could communicate with defendant’s attorneys in a moment by going to or phoning the agent at Mott. They knew that any default taken under such circumstances could serve no honest purpose, and that it must be set aside. Hence, the award of costs was grossly wrong. It was not merely an abuse of discretion. It was in excess of jurisdiction. Hence, it is reversed and vacated.
Concurrence Opinion
(concurring specially). I believe that the trial court had the right to impose some terms as a condition for relieving defendant from its default in this case. The terms imposed, however, were excessive and unreasonable, and they ought to be reduced to a reasonable amount.