Plaintiff commenced an action against the defendant, in the county court of Cass county, on March 20, 1925, by the personal service of a summons and complaint. On April 10, 1925, the defendant being in default, a judgment was entered in favor of the plaintiff for the full amount demanded in the complaint. On April 14, following, a notice of motion to reopen the judgment was served and on April 28, an order vacating the judgment was made. From this order the plaintiff appeals.
The complaint alleges a cause of action, for the recovery of money, arising out of a contract of employment. The motion to vacate was *Page 314 supported by an affidavit on the merits and a proposed answer both of which set forth a meritorious and complete defense to the action. In the affidavit the defendant avers, by way of excuse, that very soon after the service of the summons and complaint, he mislaid both in his office; that he never found them; that he assumed that the action had been started in the district and not in the county court of Cass county, and that he supposed therefore, that he had thirty instead of twenty days in which to answer. It appears also that during the term of the immediate predecessor of the present incumbent of the office of county judge, very few jury cases had been tried; that the county court had not been, until recently, "active in the trial of cases;" that it had not "functioned in the trial of important cases, etc."
Plaintiff contends that the order of the lower court must be reversed and the judgment re-instated because a vacating of the judgment was, in the circumstances, an abuse of discretion. The only question is whether the defendant showed, "mistake . . . or excusable neglect," within § 7483, Comp. Laws, 1913, so as to warrant the order of vacation in the exercise of legal discretion.
The material part of § 7483 reads as follows:
"The court may likewise, in its discretion and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this code, or by an order enlarge such time; and may also, in its discretion and upon such terms as may be just at any time within one year after notice thereof, relieve a party from a judgment, order or other proceedings taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding."
The motion is addressed to the sound judicial discretion of the trial court. In Jesse French Sons Piano Co. v. Getts, 49 N.D. 577, 192 N.W. 765, this court said:
"The defendant and appellant contends that the court erred in making an order denying his motion to vacate and set aside the judgment in this case. Such applications are addressed largely to the discretion of the trial court, and nothing but palpable abuse of discretion in granting or refusing such an application would justify this court in interfering with the action of the court below." See also Farmers M. State Bank v. Stavn, 49 N.D. 993, 194 N.W. 689. *Page 315
The affidavits show that the summons and complaint were lost; that it was not usual that important jury or civil cases be commenced and tried in the county court; and that because the defendant supposed that the case was to be tried in the district court he thought he had the usual period of thirty days within which to answer. He was mistaken as to the court in which the action had been commenced. This was a mistake of fact. Upon discovering the mistake he promptly moved to vacate the judgment. We are not prepared to say that it was an abuse of discretion to vacate the judgment and permit the defendant to answer and defend on the merits. If he can prove the allegations of his proposed answer, it is clear not only that the plaintiff has no cause of action, but also that the judgment he obtained is entirely unjust.
The order appealed from is affirmed.
CHRISTIANSON, Ch. J., and BIRDZELL, NUESSLE, and BURKE, JJ., concur.