67 N.W. 296 | N.D. | 1896
This action was based upon promissory notes executed by the defendants in favor of plaintiff. It was aided by attachment. The service was by publication. Defendants appeared specially, and moved to discharge the attachment. The court denied this motion, and this made the ground of the first assignment of error. It is urged that the writ of attachment was prematurely issued, in that, when the clerk issued the writ, no summons had been issued in the case. The summons was dated November I, 1893, and was in due and proper form and signed by plaintiff’s attorneys. The writ of attachment was issued November 3, 1893. The return of the sheriff of the proper county shows that he received the summons for service on November 4, 1893. On these facts it is claimed that the summons was not issued at the time the clerk issupd the warrant of attach
The filing of the affidavit and bond for attachment is dated November 4, 1893, but the record shows without dispute that they were presented to the clerk on November 3d, and before he issued the writ of attachment. This was sufficient. In law they
On December io, 1894, more than a year after the case was commenced, a general appearance for defendants was served upon plaintiff’s counsel by the attorney who had made the special appearance, and a copy of the complaint demanded. This notice was returned on the same day, for the reason, as stated, that defendants were already in default. On December 18, 1894, plaintiff served notice upon the attorney for defendants of an application for judgment, and on December 28th, pursuant to such notice, judgment was ordered for $2,495.74 and costs. On January 31, 1895, the defendants appeared before the court by their attorney, plaintiff also appearing by his attorney, and moved the court to set aside the judgment, and that the defendants be permitted to have a new trial; and as a ground therefor alleged that “there is no cause of action stated in the complaint against defendant, in that the indebtedness is not yet due, and the judgment herein rendered is premature.” This motion was granted on April 13, 1895. The complaint alleged the execution of five promissory notes by defendant in favor of plaintiff for the sum of $666.67, each dated August 12, 1891, bearing 6 per cent, interest, payable annually, the first note maturing January 1, 1894,
After the judgment was set aside, and on April 20th, 1895, the attorney for the defendants made application to be allowed to answer in the case, and presented to the court an affidavit of merits, and his proposed answer. This application was doubtless made under the following language in Subd. 5, § 4900, Comp. Laws: “The defendant, against whom publication is ordered, or his representatives, on application and sufficient ca*use shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its.rendition, on such terms as may be just.” The judgment having been previously set aside unconditionally, the case stood as though no judgment had been entered. It was, therefore, an application by defendants against whom publication had been ordered for leave to defend before judgment. In such case, where there is sufficient cause shown, the right of the defendants to come in and defend is absolute, and no
Reversed.