Summary
In Citizens' National Bank v. Larson, 59 N.D. 427, 230 N.W. 292, we held that the time for appeal from an order expired before the order was filed.
Summary of this case from Board of University and School Lands v. VanceOpinion
Opinion filed March 17, 1930. Rehearing denied April 24, 1930.
Appeal from the District Court of Grand Forks County, Cole, J.
Dismissed.
Lemke Weaver, for appellant.
"Compiled Laws, § 4939 relating to the opening of default judgments should be liberally construed in order that cases may be disposed of on their merits." Turner v. Coughran (S.D.) 66 N.W. 810; Griswold Linseed Oil Co. v. Lee, 47 N.W. 955; Buckness v. Archer, 135 N.W. 675.
It is reversible error to refuse to admit a plea to the merits before judgment. Wagnon v. Turner, 73 Ala. 179; Haley v. Breeze (Colo.) 26 P. 343; Anpthill v. Semple, 2 Cromp. J. 358, 1 Dowl. P.C. 316, 1 L.J. Exch. 102, 2 Tyrw. 312.
The power to vacate and set aside a default judgment has always been liberally exercised in the furtherance of justice. Bucknell v. Archer, 29 S.D. 22, 135 N.W. 675.
"A default judgment should be vacated where the affidavits of merits and the proposed verified answer state a meritorious defense, notwithstanding contradictory affidavits, since on a motion to vacate a default the affidavits of merits may not be impeached, and the courts should not try out the merits of the defense." Lobe v. Bartaschawich, 37 N.D. 572, 164 N.W. 276.
Where the court is in doubt it is better to resolve the doubt in favor of the application to open up the judgment. Northern Commercial Co. v. Goldman, 37 N.D. 542, 164 N.W. 133.
Libby Harris, for respondent.
"Intervention is a proceeding by which one not originally made a party to an action or suit is permitted, on his own application, to appear therein and join one of the original parties in maintaining his cause of action or defense, or to assert some cause of action against some or all of the parties to the proceeding originally instituted." 20 R.C.L. 682. See Judd v. Patton (S.D.) 84 N.W. 199; Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Minnesota Threshing Mach. Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Getchell v. Great Northern R. Co. 24 N.D. 487, 140 N.W. 109; Pettigrew v. Sioux Falls (S.D.) 60 N.W. 27; Moughey v. Miller, 41 N.D. 81, 169 N.W. 735; Croonquist v. Walker (N.D.) 196 N.W. 108; Pank v. O'Laughlin, 37 N.D. 532, 164 N.W. 135.
A defendant in default may prosecute an appeal from the judgment rendered. Hope Nat. Bank v. Smith, 38 N.D. 425, 165 N.W. 550.
The notice of appeal herein states that the "intervenor," Mary Larson, appeals from the order of the district court entered on the 1st day of August, 1929, denying the "said defendant's motion for leave to answer and especially from the order entered by said district court herein on the 26th day of September, 1929, denying the said defendant and intervenor, Mary Larson, the right to intervene or answer and from the whole thereof." The record before this court shows that the action is one to determine adverse claims to real property; that the appellant was one of a number of defendants who failed to answer within the statutory time; and that one defendant, coming under the description of an unknown person claiming an estate or interest, answered raising certain issues. In March, 1928, the defendants who were in default, through their attorneys, served notice of motion for leave to answer. This motion came on for hearing on June 4, 1928, when the cause was otherwise ready for trial. The motion was denied and the trial proceeded. A formal order denying the motion, dated July 9, 1928, appears to have been signed by the judge at the instance of the appellant's counsel. While the court was holding the cause under advisement, the appellant, Mary Larson, who was at that time a defendant in default and who had been denied leave to answer, moved to be permitted to intervene, the motion being heard on October 8, 1928. On February 5, 1929, the court rendered its decision in the action on the merits in favor of the plaintiff and against the defendants. Notice of entry of judgment was served on appellant's attorneys February 15th. On August 1, 1929, the court signed a second formal order denying the motion of the defendants for leave to answer and on September 26th signed a further order designated as an order denying motion for intervention. After reciting the history of the case, the order formally "denies the motion of Mary Larson for leave to intervene, on the grounds that she was wholly and entirely in default in said action, and that there was not sufficient excuse or reason for such default, and on the ground that said motion was not timely made, . . ." Additional grounds are also stated which need not be mentioned here further than to say that the order was based upon what was termed the "final order in said action of date August 1, 1929." The history of this litigation briefly narrated above makes it clear that the order or orders appealed from cannot be reversed.
In so far as the orders of August 1st and September 26th, 1929, are to be regarded as orders denying the appellant the right to intervene, they are obviously correct. Section 7413, Compiled Laws of 1913, which provides for intervention, provides for it only before the trial and not after. It says: "Any person may before the trial intervene in an action or proceeding, who has an interest in the matter in litigation in the success of either party, or an interest against both. . . ." See Hickox v. Eastman, 21 S.D. 591, 114 N.W. 706. The record fails to show that the appellant attempted to intervene before the trial. At the time of the hearing before the trial it was recognized that the parties in whose behalf the motion was made, including the appellant, were already parties — parties who had been served and who were in default. They asked only to be relieved of that default and to be permitted to answer as though the default had not occurred. Once relieved of the default they would have had a right as parties to have answered. Intervention (if appropriate at all here) was apparently not thought of until after the trial. At that time it could not have been granted (§ 7413, supra). So it was proper to deny it.
In so far as the appeal brings up for review the orders entered in August and September, 1929, as orders denying the appellant leave to answer, the record now before us shows a moot question to be presented. The transcript shows that the trial court definitely denied this motion before proceeding with the trial in June, 1928, and the record shows that the trial judge signed a written order evidencing this ruling, which order is dated July 9, 1928. It is true that this order appears not to have been filed until October 22, 1929, but counsel for the respondent assert, and such assertion is not denied, that the order was signed by the judge at the instance of counsel for the appellant and served upon them. It therefore appears that the motion of appellant's counsel to be permitted to answer was ruled upon in June, 1928, and that a formal order denying the motion was signed by the judge at the instance of appellant's counsel on July 9, 1928. The appellant had notice thereof within Section 7820, Compiled Laws of 1913, which limits the time for appeal to sixty days from the time when the order was signed in the circumstances here shown. The finality of such an order for purposes of appeal is not affected by the date of filing. Lake Grocery Co. v. Chiostri, 31 N.D. 616, 154 N.W. 533. Hence, the motion was definitely disposed of and the order disposing of it became final sixty days after July 9, 1928. Likewise, the judgment became final in August, 1929. Any action, therefore, which this court might take by way of reversing the orders of August and September, 1929, could not affect either the finality of the order of July 9, 1928, denying leave to answer, or the finality of the judgment if the same was not appealed from within six months from notice of entry thereof. No motion or order has involved any attempt to vacate or otherwise affect the judgment or the order of July 9, 1928.
It follows that the appeal in the instant case is moot and must be dismissed as such. It is so ordered.
BURKE, Ch. J., and BIRDZELL, BURR, NUESSLE, and CHRISTIANSON, JJ., concur.