179 N.W. 992 | N.D. | 1920
Statement.—This is an appeal from an order vacating a judgment against a garnishee. The facts necessary to be stated are as follows:
On May 21, 1919, the plaintiff instituted an action in district court against the defendant to recover for goods sold. At the same time he issued a garnishee summons against A. H. Anderson, agent for the Continental- Fire Insurance Company, based upon an affidavit for garnishment that such insurance company had money in its possession belonging to the defendant. On June 24, 1919, said A. II. Anderson, agent, made his affidavit admitting that the said insurance company was indebted to the defendant for loss by fire under an insurance policy amounting to $800, $300 of which was assigned by indorsement on the policy. On the same date, June 24th, the defendant served an answer to the garnishment proceedings, claiming that the proceeds of such policy were exempt. On the same date, one of the attorneys for the plaintiff made his affidavit that more than thirty days had elapsed since the service of the process; that the defendant had not served an answer or demurrer and had not made any appearance in the action; but that he served in the garnishment proceedings on June 24, 1919. Pursuant to this affidavit for default the trial court on June 25, 1919, ordered judgment for $904, and interest and costs against the defendant in the main action, and against A. H. Anderson, as agent of the Continental Fire Insurance Company, garnishee, for $500. Pursuant to this order, on July 1,1919, judgment was entered accordingly. On November 28, 1919, an execution was issued upon the principal judgment. Pursuant thereto, on December 1, 1919, the sheriff levied upon the $500 so disclosed by the said Anderson. On January 2, 1920, the defendant
Ppon this motion the trial court, after hearing, entered its order vacating the judgment against said Anderson and permitting defendant’s answer to stand as such in the garnishment proceedings. In this order the court, among other things, stated that the defendant suffered a loss by fire of his home and furniture on May 19, 1919. That the $500 owing by the Continental Fire Insurance Company was the proceeds from the fire insurance policy upon such furniture. That said
Opinion.—We are clearly of the opinion that the trial court did not err in vacating such judgment against the garnishee. Pursuant to § 7483, Comp. Laws 1913, the trial court was authorized in its discretion to allow an answer to be made to this garnishment proceeding even after the time limited. The answer, upon its face, presents a meritorious defense. In such cases, where the court has made its order opening and vacating a judgment entered by default for the purpose of permitting a meritorious defense, its action will not, as a rule, be disturbed, unless an abuse of discretion appears. Citizen’s Nat. Bank v. Branden, 19 N. D. 489, 493, 27 L.R.A.(N.S.) 858, 126 N. W. 102; Keeney v. Fargo, 14 N. D. 419, 423, 105 N. W. 92; Cline v. Duffy, 20 N. D. 525, 527, 129 N. W. 75; First State Bank v. Krenelka, 23 N. D. 568, 137 N. W. 824. It certainly may not be deemed an abuse of discretion to permit an answer in a garnishment proceeding, to be interposed on the same day that the disclosure in such garnishment proceedings is taken. See Braseth v. Bottineau, 13 N. D. 344, 100 N. W. 1082. The order in all things should be affirmed.