Johannes v. Coghlan

137 N.W. 822 | N.D. | 1912

Spalding, Oh. J.

(after stating the facts as above).

The only question for our consideration is whether we can say that the trial court abused its discretion in denying defendant’s application to vacate the judgment. In deciding upon such application the trial court undoubtedly took into consideration not only the facts disclosed by the affidavits which we have recited, but the character of the answer interposed by the defendant and his own knowledge of the condition of the weather and roads at the time the trial was had. It is clear that the defendant’s answer was frivolous. In effect it was an admission of the allegations of the complaint concerning the cause of action, and judgment will not be vacated when the defense pled is not meritorious. 23 Cyc. 964, note 43 and b.

The affidavits on the part of defendant are vague and uncertain in their statements as to time and as to the condition of the defendant, and disclose no earnest effort on his part to find his counsel and secure his attendance at the trial or to be present himself. As far as appears, his counsel may have been justified in ássúming that he had abandoned his defense. He had given him as definite Information as is usually possible in such cases as to the day when the case could be reached for trial. It was then defendant’s duty to be present, particularly when he lived 18 miles from -the county seat. It is the duty of litigants to watch the progress of proceedings in court, rather than of the court to accommodate its business to the convenience of a single litigant and perhaps thereby inconvenience all other parties having business before the court, hold jurors at the expense of the public, and interfere with the orderly prosecution of its regular business.

The departure of two material witnesses for the plaintiff for points unknown, between the trial and the hearing of the motion, was a proper circumstance for the court to take into consideration. The necessity for their presence after the trial and entry of judgment could not be anticipated by the plaintiff, and their absence might seriously prejudice his cause.

There was no such clear abuse of discretion on the part of the trial court in denying defendant’s motion to vacate the judgment as will warrant this court in reversing the order. See. Bazal v. St. Stanislaus Church, 21 N. D. 602, 132 N. W. 212; Racine-Sattley Mfg. Co. v. Pavlicek, 21 N. D. 222, 130 N. W. 228; Cline v. Duffy, 20 N. D. 525, 129 N. W. 75, and authorities cited in such*cases.

The order of the trial court is affirmed.

Burke, J., being disqualified, did not participate.