Lobe v. Bartaschawich

Birdzell, J.

This is an appeal from an order entered in the district court of Ward county, vacating a default judgment entered against the defendants in the county court of Ward county, and subsequently transcripted to the district court. The order appealed from is as follows:

Order Opening Default and Allowing Answer.

It appearing to the court that the above-named plaintiff heretofore brought an action against the above-named defendants in the county court of Ward county, North Dakota, and obtained judgment in said action by default on May 22, 1915, and thereafter filed a transcript of said judgment in tbe office of tbe clerk of tbe district court in and for-said Ward county; and that tbe defendants made a motion in tbe said county court to have said judgment opened and to be allowed to defend tbe said action; and that said motion was stipulated to be beard in this court, to wit, tbe district court for said county of Ward, on October 12, 1915, by the oral stipulation, in open court, of J. L. Lee, attorney for plaintiff, and Lewis and Bach, attorneys for defendant; and that the said motion was thereupon duly heard in this court on October 12, 1915; and the court being of opinion, and so finding, that said default ought to be opened and said judgment set aside, and the defendants-allowed to defend the said action:

Now, therefore, on motion of Lewis & Bach, attorneys for the defendants herein, it is

Ordered that said judgment be, and it hereby is, vacated and set aside, and that the said action be, and it hereby is, remanded to- the county court in and for Ward county, North Dakota, with instructions to allow the defendants to defend the same upon answering the complaint within fifteen days from this date, to wit, by October 27, 1915, and paying to the plaintiff $10 costs.

Dated at Minot, N. D., October 12, 1915.

(Signed) K. E. Leighton,

Judge.

The motion papers were entitled “In the County Court of Ward County, before the Hon. William Murray, Judge,” and the notice of motion notified the plaintiff that the motion would be heard in said court. By the affidavits supporting the motion, it appears that the moving party relied upon the failure of the plaintiff to serve the summons and complaint as constituting excusable neglect to defend the action. The motion was also accompanied by an affidavit of merits showing that the affiants had submitted all the facts constituting their defense to their attorneys, and had been advised by them that the defense was meritorious. There was also an affidavit of merits containing the substance of the proposed answer, which was signed by one of the attorneys for the defendants. Counter affidavits were filed by Jens IT. Springer and J. L. Lee, which disputed the facts stated in the affidavits supporting the motion with reference to the service of the summons and the complaint.

The appellants rely for a reversal of the order upon two main grounds of error in the entry of the order. It is contended, first, that the entry of the order was an abuse of discretion, because of the insufficiency of the showing made by the defendants; and, second, that the court was without jurisdiction to determine the motion.

The affidavit of the defendants, in support of the motion, states, specifically that no summons or complaint was served on them, and that they had no notice or knowledge of such action whatsoever until an execution was levied upon their property. In the face of this showing, even though the same is controverted by the affidavits of Jensen and of Lee, the plaintiff’s attorney, we are not prepared to say that the judge who heard the motion erred in allowing the judgment to be opened.

It is argued that the affidavit makes no showing of mistake, inadvertence, surprise, or excusable neglect within the provisions of § 7483, Comp. Laws 1913. Certainly a showing that no summons or complaint was served, and that defendants had no notice or knowledge of the pendency of an action against them, amounts to a showing of excusable neglect to answer and defend. In fact if there was no service, such showing was not necessary. Van Woert v. New York L. Ins. Co. 30 N. D. 27, 151 N. W. 29.

It is also argued that the affidavits in support of the motion do not make a proper showing of meritorious defense. The affidavit of the defendants is in a form which has been expressly approved by this court. In the case of Bismarck Grocery Co. v. Yeager, 21 N. D. 547, 131 N. W. 517, this court, speaking through Mr. Justice Burke, said (page 550) : “There are two forms of affidavits of merits recognized by the courts, — the older form, wherein all of the facts are set out for the inspection of the courts; and the other form, wherein affiant states that he has submitted all of the facts to his attorney, and has by him been advised that his defense is meritorious. The latter form has been in general use in North Dakota Since statehood, and will, of course, be recognized by this court.”

The form of affidavit used in this case having heretofore received the sanction of this court, and it appearing that there is no good reason to-alter the rule thus laid down as to its sufficiency, we are content to hold that the affidavit in this case is sufficient.

In a supplemental brief devoted to the proposition that the district court was without jurisdiction to enter the order appealed from, it is argued with considerable force and earnestness that the act of the district court in entering the order was a nullity. It appears in the order that the judgment of the county court was transcripted to the district court before the application to vacate was made. Section 8943, Comp. Laws 1913, authorizes judgments to be thus transcripted, and it appears from the section referred to that the chief, if not the only object of the procedure, is to entitle the judgment creditor to resort to the same proceedings in the enforcement of the judgment that he would be entitled to were the judgment an original district court judgment. This appearing to be at least the main purpose of the statute, it is argued that a judgment so transcripted is only made a district court .judgment for the purpose of collection, and that, as to .any steps which a judgment debtor might desire to take by way of vacating the judgment, it is still a county court judgment. The argument presented is logical (Phelps v. McCollam, 10 N. D. 536, 88 N. W. 292), but we do not deem it necessary to determine the soundness of the position taken; for it appears that, while the motion was noticed for hearing in the county court, it was heard by stipulation in the district court. The appellant does not ask to be relieved of the stipulation, nor is the making of the same disputed in the briefs. We must therefore assume that the facts stated in the order with reference to the oral stipulation are true. In this situation, the question of jurisdiction must be determined upon different considerations than would apply if the appellant had made a special appearance in the district court for the purpose of objecting to the jurisdiction of that tribunal to hear and dispose of the motion. The appellant, having thus entered his appearance in the district court, is bound by the decision announced in the order, if the subject-matter dealt with in the motion and in the order is such that jurisdiction to determine it can be voluntarily conferred upon the court. The district court, being a court of general jurisdiction, has power to determine all controversies or questions of difference which can possibly be made the subject of civil action. Clearly a proceeding to determine the validity and binding force of a judgment is one that might be brought in the form of a civil action. Freeman v. Wood, 11 N. D. 1, 88 N. W. 721. If an action were brought .attacking the judgment directly, it would make no difference that the judgment was that of an inferior court of limited jurisdiction, rather than of the district court. The judgment in such eases is only the form in which the purported obligation rests. The fight of a court of general jurisdiction to determine the binding force of a judgment is as clearly •established as is its right to cancel a fraudulent promissory note. Both call for the exercise of ordinary judicial functions appealing to the equity side of the court. The subject-matter being within the scope of the jurisdiction of the court in which the motion was made, and such court having determined the controversy by consent of the parties, they are now precluded from questioning the jurisdiction. There are but few analogous cases, presumably due to the fact that parties who consent to the exercise of the judicial powers of a court of general jurisdiction seldom have the hardihood to impeach the action of the tribunal on jurisdictional grounds. Some of the authorities, in discussing questions analogous to this, base the decision upon grounds of estoppel. The mischief that might result in reversing an order of this character for lack of jurisdiction is obvious; and in order to prevent it courts are warranted in invoking the doctrine of estoppel. The time within which to appeal from the judgment of the county court might elapse while the judgment debtor, who, by the order of the district court, has been given an opportunity to put in his defense, was relying upon the stipulation; or the time for opening and vacating the judgment in the county court might run under similar circumstances. See Groves v. Richmond, 56 Iowa, 69, 8 N. W. 752. The following expression from the supreme court of Pennsylvania, in Re Spring Street, 112 Pa. 258-263, 3 Atl. 581, is pertinent in this connection. “While it is conceded as a general rule that consent will not give jurisdiction, yet we are not to lose sight of the fact that the court ■of quarter sessions has a general jurisdiction over the opening of streets and the assessment of damages therefor. And while in the particular portion of territory embraced within the city of Beading that jurisdiction has been transferred to the court of common pleas, the fact remains that the city not only consented to, but invoked, the jurisdiction of a court having such general jurisdiction; and having now ob-tamed the fruits of their proceeding, it does not lie in the mouth of the municipality to raise such an objection as this. Had the parties consented to the jurisdiction of a court having no general control of such matters, as, for instance, the orphans’ court, the proceedings would have been absolutely void, and no consent of either party would have worked an estoppel. But as the case stands we are of opinion that good faith and fair dealing alike require the city to pay their awards.” See also Chalmers v. Turnipseed, 21 S. C. 126; and Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 597, 154 N. W. 654.

Counsel argue that the county court will be under no obligation to recognize the order of the district court. This argument presents no question requiring decision at this time; but it may be observed that the order is in favor of the judgment debtor, and that, while failing to observe the order, it is impossible for the judgment creditor to collect his judgment. It is only reasonable to assume that his interest in the collection of a just claim, if he has one, will prompt him to again pursue his action in the county court.

The order appealed from is affirmed.