(Emphasis added.) [¶ 31] In King v. Montz, 219 N.W.2d 836 (N.D.1974), this Court concluded that “the negligence of the insurer in failing to defend is not to be imputed to the defendant so as to bar the opening of a default judgment where, in the exercise of a sound judicial discretion, it appears that defendant after receiving notice acted with diligence, has a defense on the merits, and where, as here, no substantial prejudice will result to the plaintiff.” Id. at 838 Syllabus ¶ 6 (emphasis added).
(Emphasis added.) [¶ 14] In King v. Montz, 219 N.W.2d 836, 838 Syllabus ¶ 6 (N.D.1974), this Court concluded that “the negligence of the insurer in failing to defend is not to be imputed to the defendant so as to bar the opening of a default judgment where, in the exercise of a sound judicial discretion, it appears that defendant after receiving notice acted with diligence, has a defense on the merits, and where, as here, no substantial prejudice will result to the plaintiff.” (Emphasis added.)
Third, as a consequence of the first two considerations, "`[w]here timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.'" King v. Montz, 219 N.W.2d 836, 839 (N.D. 1974) [quoting 7 Moore's Federal Practice ¶ 60.19, at p. 60-156].See also Throndset v. L.L.S., 485 N.W.2d 775, 778-79 (N.D. 1992).
Bender v. Liebelt, 303 N.W.2d 316, 318 (N.D. 1981). Third, as a consequence of the first two considerations, "`[w]here timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.'" King v. Montz, 219 N.W.2d 836, 839 (N.D. 1974) [quoting 7 Moore's Federal Practice ¶ 60. 19, at p. 60-156]. Against this backdrop, the Aafedts shoulder a heavy burden to demonstrate that the trial court abused its discretion in vacating the December 1 dismissal of CUNA's foreclosure actions. See Suburban Sales v. District Court of Ramsey, supra.
Evener further contends that he did not understand that it was necessary for him to pay Mr. Mills a retainer fee prior to Mr. Mills's interposing an answer on his behalf to Martha's divorce action; and that it was Mr. Mills's obligation and duty to notify Evener, prior to the expiration of the time for answering the complaint, that Evener should either pay the retainer fee to Mr. Mills or that the relationship of attorney-client would be terminated. Therefore, Evener contends that he should not be penalized for the error of his attorney, and cites King v. Montz, 219 N.W.2d 836, 839-840 (N.D. 1974), in support of his assertions. King is distinguishable on its facts.
"[w]here timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits." King v. Montz , 219 N.W.2d 836, 839 (N.D. 1974). [¶19] In the present case, Shane was served with the summons and complaint on February 24, 2017. Shane did not respond to these documents.
[¶ 16] This Court has held neglect or errors of an insurance company with a duty to defend may merit vacation of a default judgment under Rule 60(b). King v. Montz , 219 N.W.2d 836, 840-41 (N.D. 1974). This case is distinguishable from King.
[¶ 12] According to Stolz, he never personally received notice of the trial date from the court, opposing counsel, or his attorney, and he argues motions to vacate should be granted when the mistake or neglect is the fault of a third party. See CUNA Mortg. v. Aafedt, 459 N.W.2d 801, 803 (N.D.1990) (affirming the district court's decision to grant a party's motion to vacate when the mistake was the fault of their attorney); King v. Montz, 219 N.W.2d 836, 840 (N.D.1974) (reversing the district court's decision denying a party's motion to vacate when the neglect or error was the fault of their insurance company). However, Stolz's argument fails because he has not shown his failure to appear at the hearing was a mistake caused by his attorney.
Tran does not argue that his attorney had been retained for the civil forfeiture action and that attorney error was the sole cause of the entry of default judgment, which may have provided Tran relief from the judgment under Rule 60(b). See Beaudoin v. So. Texas Blood Tissue Ctr., 2005 ND 120, ¶ 36, 699 N.W.2d 421 ("Although the district court is correct in noting we are reluctant to attribute a third-party's errors to an innocent defendant, this fact does not foreclose N.D.R.Civ.P. 60(b)(i) relief when a defendant has personally erred."); CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 (N.D. 1990) (citing King v. Montz, 219 N.W.2d 836, 839-40 (N.D. 1974)) (finding a movant's "failure to timely respond was the result of lawyer error, which we are reluctant to attribute to a client who has not been personally negligent"). [¶ 14] The fact that Tran ignored the summons and complaint, properly served upon him, does not constitute excusable neglect, inadvertence, mistake, or surprise under Rule 60(b)(i), N.D.R.Civ.P. "`A simple disregard of legal process is, of course, not excusable neglect under the rule.'"
In situations such as are here disclosed, the courts have been reluctant to attribute to the parties the errors of their legal representatives." 219 N.W.2d 836, 839-840 (N.D. 1974). Indeed, many of the cases the Defendant cites to support vacating the default judgment, also include language similar to that described in both Montz and CUNA. [ See Gepner v. Fujicolor Processing, Inc., 2001 ND 207, 637 N.W.2d 681] ("We have also cautioned that, when the inadvertence or neglect has been committed by a party's attorney or insurer, we are reluctant to attribute the error to a client who was not personally responsible."); First Fed. Sav. [] Loan Ass'n v. Hulm, 328 N.W.2d 837 (N.D. 1982) ("In this case there is no assertion by Linda that her failure to make an appearance in the case prior to entry of the default judgment was the result of the neglect or other act of any third party.").