53 N.W. 80 | N.D. | 1892
The appeal is from an order vacating a judgment. The motion was made on the ground of surprise to defendant. The complaint was verified. The answer was not verified, but was received by plaintiff without objection. The case being at issue on the calendar of the District Court in and for the County of Walsh, the defendant failed to appear when the cause
that state, but the court was careful to assert that there must be a verified answer in such a case. “It is insisted that the judgment should not have been set aside, without an affidavit of merits * accompanying the motion. Such an affidavit, on taking a default, was formerly held to be indispensable, [citing cases,] but probably the practice has been changed in this, respect by chapter 211, laws of 1861, where the answer itself shows merits and is verified.” As supporting the rule requiring an affidavit of merits, see 1 Black, Judg. § 347; Freeman Judg. § 108, and cases cited; Parrott v. Den, 34 Cal. 80; Bailey v. Taaffe, 29 Cal. 422; Ice Co. v. Schlenken, (Minn.) 52 N. W. Rep. 219. The order vacating the judgment is reversed.