217 N.W. 172 | N.D. | 1927
The appeal is from the order of the district court vacating a default judgment and permitting the defendant Anna Bach to answer.
Plaintiff commenced an action against Anna Bach and her husband, on or about March 1, 1927, for the foreclosure of a mortgage on real estate. Both signed the notes and mortgage and on this appeal Anna Bach admits the fact of the debt, the mortgage on the premises, and *299 her husband's liability for the deficiency. Hence neither defendant answered and judgment was entered against both by default. Special execution was issued, the mortgaged premises sold, a deficiency judgment was entered against them, a general execution issued and a levy made on real property belonging to the defendant Anna Bach. This property was advertised and sold, and on the 20th day of July, 1927, the sale was confirmed by the district court. Learning of this the defendant on the 17th day of August, 1927, made an application to the court for an order to have the judgment vacated and set aside as to her and to permit her to answer the complaint, which application was granted. From this order the plaintiff appeals.
The application to vacate the default is based on the grounds of surprise and excusable neglect. It is the contention of Anna Bach that she was induced by the plaintiff to sign the notes in question because of false and fraudulent representations made to her that she was signing merely to waive any homestead interest she had in the real estate and not for the purpose of assuming any liability on the debt, that so far as she was concerned her separate property would not be liable, and that she received no consideration whatever for signing the notes and mortgage. For this reason, though knowing about the commencement of the action, the entry of judgment and the sale of the mortgaged premises, she assumed the agreement made between her and the plaintiff was binding and being carried out by the plaintiff, and it was not until levy was made on her own separate property she attempted to make a defense.
The appellant claims, in general, that there is not sufficient showing of diligence to excuse default, that the papers were served personally upon the defendant Anna Bach, that she did not interpose any answer in the foreclosure proceedings, and that in any event the attempted defense set up is not a good defense because it tends to vary the terms of written instruments.
The sufficiency of the showing to justify vacation of a default judgment is primarily for the trial court to determine in its legal discretion and the decision will not be disturbed unless abuse is shown. This is the uniform holding of this court and there is no need to collate the decisions. A reference to Wakeland v. Hanson,
That the defense sought to be interposed is a good defense, is the holding of this court. In Erickson v. Wiper,
Since the defense sought to be established is a good defense, the district court was justified in assuming there was no lack of diligence and the apparent neglect was excusable. The order vacating the default judgment and permitting the defendant Anna Bach to answer is affirmed.
BIRDZELL, Ch. J., and BURKE, CHRISTIANSON, and NUESSLE, JJ., concur.