178 N.W. 284 | N.D. | 1920
This is an appeal from an order of the District court of Grant county, denying an application made by the defendant, George Bentz, to vacate a default judgment rendered against him on the 21st day of July, 1917, and allowing him to answer the complaint of the plaintiff.
The complaint in this action alleges that the defendant wilfully, wrongfully, maliciously, and unlawfully shot and wounded three horses belonging to the plaintiff, with the intent to vex, annoy, and harm the plaintiff; that the plaintiff has demanded of the defendant settlement for the damages occasioned by said shooting, but that defendant has refused to settle the same, to plaintiff’s damages in the sum of $275, wherefore plaintiff demands judgment for treble damages as provided by § 10,050, Comp. Laws 1913. The summons and complaint were served March 28,'1917; on June 11, 1917, plaintiff’s attorney made affidavit of default, and judgment by default was entered on the 21st day of July, 1917. On the 15th day of September, 1919, the defendant made an application to open the default. The application was sup-' ported by affidavits and a verified answer. In his affidavit defendant averred, among other things, “that the following are the facts in connection with the procuring of said judgment: That in the month of January, 1917, the said plaintiff fraudulently and falsely claimed and pretended that this defendant shot and killed three of his horses, and claimed to have several witnesses who could prove it, and further falsely and fraudulently claimed that he could recover big damages against this defendant, and that said horses were shot in the year 1915; that at said time this defendant did not have any witnesses, except himself, to prove otherwise; that the said plaintiff, at that time, offered to settle with this defendant for the sum of $100 in full for said horses; that this defendant, believing and figuring it would cost him more than $100 to defend the action, and for the purpose of saving trouble and expense to himself in so defending, accepted said plaintiff’s offer of settlement of $100, and pursuant to such settlement did then and there, on the 29th day of February, 1917, pay to the plaintiff the sum of
The plaintiff Bykowsky made an affidavit, wherein he says that on
It will be noted that plaintiff admits that he received $100 from defendant; but he claims that that sum was paid, not in settlement of plaintiff’s claim for damages, but for a dismissal of the criminal action. The plaintiff does not, however, deny the statements in defendant’s affidavit as to the conversation between the plaintiff and defendant after the summons and complaint had been served upon the defendant. Nor does he deny that in such conversation he told the defendant that the action had been commenced through the mistake of his attorney, and that he would inform said attorney that the matter had been settled, and see that the action was dismissed.
The plaintiff contends that the order appealed from must be affirmed:
(1) Because the application vacated was.not made within one year after the defendant had notice of the judgment; and,
(2) That in any event, the granting or refusal of such application rested within the sound judicial discretion of the trial court, and that the order cannot be reversed unless the discretion has been abused.
Plaintiff rests his contentions upon the provisions of § 7483, Comp. Laws 1913, which provides, inter alia, that the court may “in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence,
In the case at bar, the defendant, in his affidavit, asserted that the plaintiff promised to notify his attorney that the matter had been settled and see that the action was dismissed. This portion of the defendant’s affidavit is not denied in any affidavits submitted by the plaintiff. Hpon the record as a whole, we believe defendant’s motion should have been granted. The order appealed from must, therefore, be reversed. Such will be the order of this court.