| N.D. | Mar 5, 1917
Concurrence Opinion
(concurring specially). I concur in an affirmance of the order denying defendant’s application to vacate the default judgment hc.ein. Under the express terms of the statute (Comp.
On such application tbe prime question is whether tbe moving party bas presented a sufficient excuse for bis negligence. Tbe affidavit of merits or tbe allegations of tbe answer cannot be controverted, and the court will examine tbe defense pleaded only to ascertain whether tbe same, on its face, constitutes a defense, but will go no further. Minnesota Thresher Mfg. Co. v. Holz, 10 N. D 16, 84 N.W. 581" court="N.D." date_filed="1900-11-20" href="https://app.midpage.ai/document/minnesota-thresher-manufacturing-co-v-holz-6735198?utm_source=webapp" opinion_id="6735198">84 N. W. 581; Black, Judgm. 2d ed. § 348.
An examination of tbe affidavits submitted on tbe questions of mistake and excusable neglect in this case, in my opinion, discloses a state of facts peculiarly requiring tbe exercise of judicial discretion, and I am satisfied that this court would not be justified in saying that tbe trial court abused its discretion in refusing to open tbe default judgment, or that any injustice will result by reason of such ruling.
I am authorized to say that Chief Justice Bruce and my associates Birdzell and Grace fully concur in my views herein.
Lead Opinion
This is an appeal by defendant from an order refusing to vacate a default judgment for $375. It appears that under an oral contract with the defendant for the purchase and sale of two lots in Rairview Addition to New Rockford, the plaintiff at once went upon the lots and made valuable improvements in the construction of a dwelling. That the reasonable value of his own work and labor was $275.80, and he paid out for help $129.80; and then he made his home on the lots. Then the defendant transferred the lots to another party. This action was commenced on December 3d, 1911. Default was made, and on January 25th, 1915, judgment was duly entered against the defendant for $375.60, with interest and costs. The complaint shows, and the proposed answer admits, “that the plaintiff agreed to buy said property, and the defendant promised to sell the same to the plaintiff for the purpose of enabling the plaintiff to build and construct thereon a frame dwelling house for himself and family, which fact was well known and understood by the defendant at the time he agreed to sell and convey said lots.” (This material and express admission defendant omits from his printed copy of the answer, as if he expected the court to overlook it.)
It appears that immediately after contracting for the purchase and sale of the lots the plaintiff proceeded to construct thereon a frame dwelling house for himself and family, and completed the same, with a cistern, well, pump, and outhouse; and while he was living in the house with his family, the defendant transferred the lots and the improvements to another party, and the plaintiff was put off the lots and out of the house which he had built.
The default of the defendant might well be excused, but on the whole there is no showing of good faith and fair dealing on the part of the defendant, and it does not appear that the judgment is unjust. Where a party avails himself of the labor of another, common honesty requires him to pay for it. Order and judgment affirmed.