129 N.W. 1027 | N.D. | 1911
This is an appeal from an order entered on the llth day of May, 1909, by the district court of Richland county, vacating, and setting aside a judgment of that court in favor of the appellant herein, entered on the 19th day of February, 1908, and reinstating the-action in which such judgment was entered on the calendar for trial in the district court of said Richland county on its merits, which order also directed that Honorable W. S. Lauder, counsel for E. W. Schouweiler, W. H. Cox, and K. Currie, be allowed to take part in the trial of said cause on behalf of his said clients, and all other citizens, electors, and taxpayers of Fairmount School District who may wish to be represented on the trial of said action, at the expense of the individuals employing said Lauder. The proceedings leading up to this are somewhat complex, and include the application to this court for a writ of certiorari on the part of the parties above named, which application was-denied and the court’s reasons for such denial stated in the opinion in Schouweiler v. Allen, 17 N. D. 510, 117 N. W. 866. It is unnecessary to review at length the facts, or to detail the proceedings. In that opinion we held as one of the reasons for denying the application for the-writ of certiorari that the applicants still had the right to apply to the district court to vacate its judgment in favor of the appellant herein, and thereby become parties to the record. The action is between the-plaintiff, a citizen and taxpayer of the Fairmount School District, and the members of the school board, and it is sought therein to enjoin the-school board from issuing bonds voted at an election held on that question for the purpose of erecting a schoolhouse. The applicants or-petitioners in the certiorari proceeding, the respondents on this appeal, were all electors and taxpayers of the Fairmount School District, in
Before determining this appeal, we refer to certain criticisms by counsel for appellant contained in his brief, of a statement contained in •the opinion cited, to the effect that that application was treated solely in the trial court as an application to intervene after judgment. It is ¡said that this was dictwm, unwarranted by the record, and that in fact it was an application to vacate the judgment, and because the respondents herein appealed from the order denying that application, the matter is res judicata. Counsel has overlooked what occurred on the argument of that application, and statements made in his brief for the purpose of defeating such application. Such statements made orally and in the brief were to the effect that the applicants, the respondents herein, 'had the legal right after judgment, and still have the right, to ask the judge of the trial court to vacate and set aside the judgment below, ¡and to permit them to intervene and conduct their part of the action and enforce their legal rights in it, and that the judge of that court liad never denied such right, because they had never applied for it. It was conceded by the opposing counsel that intervention could not be had after judgment. We accepted the statements of counsel for both parties, .and this was among the reasons for denying the application for the writ •of certiorari. We dismiss the criticisms with this explanation, and pro-need without opinion on the assumption, concededly correct, that that •application was treated and to be considered only as stated.
1. An appeal was taken from the denial of the application of the respondents herein to intervene after judgment. That appeal, after the determination of the certiorari proceedings, was dismissed on stipu
2. A short time prior to the making of the application which resulted in the order from which this appeal is prosecuted, and after the determination of the application for the writ of certiorari, these respondents made an application to vacate the judgment referred to on grounds substantially the same as those set forth in their later application for the -order from which this appeal is taken. That application was heard and denied, the appellant appearing and objecting to the granting of it, on the ground that the court had no jurisdiction, the records and papers in the case being then in this court in the certiorari proceeding. It is •clear that the district court had not acquired jurisdiction for the reasons stated. It is equally clear that having no jurisdiction to grant the -application to vacate the judgment by reason of the case being in this ■court, the determination of that application did not stand in the way of a new application on the same grounds, made after that court had resumed jurisdiction of the case. Even if it had obtained jurisdiction on the former application, it was largely in the discretion of the trial •court whether to consider a subsequent application or not, as has been Reid by this court, and under the circumstances we see no abuse of discretion. Clopton v. Clopton, 10 N. D. 569, 88 Am. St. Rep. 749, 88 N. W. 562; Plano Mfg. Co. v. Doyle, 17 N. D. 386, 17 L.R.A.(N.S.) 606, 116 N. W. 529.
3. Appellant insists that the application for the order appealed from could not be entertained, because made more than one year after the entry of the judgment in question. He rests his contention upon the provisions of § 6884, Rev. Codes 1905, providing inter alia that the court may at any time within one year after notice thereof, relieve a party
4. Appellant’s next point is that the moving parties were guilty of' laches, and therefore could not be heard on the application to vacate-the judgment. This contention has no merit. The certiorari proceeding was decided October 8th, 1908, and the record had not reached the-district court on the 5th day of February, 1909, the date of the application, and probably not on the 12th day of March, 1909, when the-order denying the application to vacate the judgment for want of jurisdiction was entered. It appears that the respondent proceeded immediately upon the record being returned to the trial court, as the order now under consideration was noticed on the 12th day of April, 1909, and entered May 17th, 1909.
5. It is finally contended that the order appealed from should not’ have been granted, for the reason that the application upon which it was-entered was not accompanied by an affidavit of merits. An application to vacate a judgment because obtained by collusion or fraud need not. be accompanied by an affidavit of merits. 23 Cyc. Law & Proc. p. 956; Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 Pac. 797. And in-some jurisdictions it is held that applications to vacate .judgments for
We reach this conclusion without considering or passing upon the -contention of the respondent that in any event he was relieved from ■serving such affidavit, because the record before the court contained all, ¡and more than sufficient to constitute a proper affidavit of merits.
We find no error in the record, and the order appealed from is affirmed.