Cline v. Duffy

Fisk, J. (after stating the facts as above). In the light of the above facts and showing, we are required to review the action of the trial judge in denying defendant’s application, and we must do this in accordance with well-settled rules repeatedly announced by this court in prior decisions, a brief reference to which will be here made. In Fargo v. Keeney, 11 N. D. 484, 92 N. W. 836, Mr. Chief Justice Wallin, in speaking of the scope of the review by this court, of orders such as this, said, in referring to § 5298 of the Codes which is § 6884, Rev. Codes 1905: “That section provides that said court may, ‘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 proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.’ This language clearly confers the requisite authority upon the district court, in furtherance of justice, to relieve a party from a judgment in any case where the same was. taken against him through ‘his mistake, inadvertence, surprise, or excusable neglect.’ Therefore the question left for determination is one of fact, viz., whether the trial court erred in ruling that the judgment in this case was so taken. In deciding this question it should be premised that, where an application to vacate a judgment or order is not based upon irregularities of procedure, but is placed exclusively upon the ground of mistake, surprise, inadvertence, or excusable neglect of the moving party, such application under the authorities is an appeal to the favor, and is not in the nature of an application based upon a [537] strict legal right. In such cases the application invokes the sound judicial discretion of the court to which it is addressed, and in all such cases it is well settled that there can be no reversal of the ruling of the court below by a reviewing court, except where the court of review finds that the trial court abused the discretion vested in it by the law. The mere fact that the appellate court does not entirely agree with the court of original jurisdiction in its rulings does not suffice to show a case of abuse of discretion within the meaning of the authorities. [Citing and quoting from Minnesota Thresher Mfg. Co. v. Holz, 10 N. D. 16, 81 N. W. 581.] . . . The final question presented is, therefore, whether the vacating order is one involving an abuse of discretion on the part of the trial court. Unless it is such, this court, under an established rule of practice in this and other courts, cannot disturb the ruling of the court below upon which court the statute by its terms devolves a'discretion in this class of cases.” In Keeney v. Fargo, 11 N. D. 119, 105 N. W. 92, the present chief justice of this court, among other things, said: “Courts have a wide-discretion relating to granting or withholding relief in such cases, which will not be disturbed, except on a showing of an abuse of discretion. Nichells v. Nichells, 5 N. D. 125, 33 L.R.A. 515, 57 Am. St. Rep. 510, 61 N. W. 73; Smith v. Wilson, 87 Wis. 11, 57 N. W. 1115.” This court has very recently had occasion to give expression of its views upon the rule above referred to. Citizens’ Nat. Bank v. Branden, 19 N. D. 189, 27 L.R.A.(N.S.) 858, 126 N. W. 102. Among other things it was there said: “A general rule having unanimous-support seems to be that if the moving party makes a clear and unquestionable showing that he has a good defense or cause of action on the merits, of the benefit of which he has been deprived without fault on his part, the trial court cannot, in the exercise of a sound judicial discretion, deny him the relief prayed for, and if it has done so its-action will be reversed. On the point, however, of what constitutes fault on the part of the moving party and what may be said to constitute surprise, mistake, inadvertence, and excusable neglect, the cases-are in irreconcilable conflict,” Under the facts in that case it was held that the defendant was in no manner guilty of a lack of due care and diligence, and that it was solely through the inadvertence and ex [538] cusable neglect of counsel that the default was occasioned. There is 'nothing therein stated which conflicts with or in any maüner changes or modifies the well-settled rule announced by the prior decisions. Another rule equally well settled is that there must not only be diligence in preventing a default, but there must be diligence in making the application to be relieved from such default after notice thereof. “It is well settled in cases of this kind, that the moving party has the burden of showing diligence, and, unless it is shown affirmatively, the court will not ordinarily exercise its discretion in his favor.” Wheeler v. Castor, 11 N. D. 347, 61 L.R.A. 746, 92 N. W. 381, citing St. Paul Land Co. v. Dayton, 39 Minn. 315, 40 N. W. 66; Gerish v. Johnson, 5 Minn. 23, Gil. 10. The court there expressly approved the rule announced in 6 Enc. Pl. & Pr. p. 189 as follows: “It is not sufficient for the applicant to show a case within the statute of relief and a good ■defense on the merits. He must also show proper diligence in prosecuting his remedy.” See also Keeney v. Fargo, 14 N. D. 423, 105 N. W. 93. The contention that, -if the application is made within a year after notice of the default, it is in time, notwithstanding the applicant fails to use diligence in applying for the relief, is contrary to the express holdings of this court. Such prior decisions are clearly sound and merit our unqualified approval. It is our plain duty, therefore, not to interfere with the exercise by the trial judge of the discretion vested in him, unless we are able to say, from the showing made, that there was a clear and manifest abuse 'of such discretion. The burden was upon the applicant to affirmatively show diligence prior to the default, and also to show such diligence after the default in seeking relief therefrom, or he must show facts -excusing the exercise of such diligence. A failure to make such showing will ordinarily not only justify, but require, the court to exercise its discretion in denying the application. Tested by these rules we are required to determine from the facts whether the trial judge abused his discretion in denying appellant’s motion. Upon the former hearing a majority of the court arrived at a conclusion adverse to appellant’s contention. Upon a rehearing and re-argument of the case, we have reached an opposite conclusion. More mature deliberation has served to convince us that, under the showing, appellant cannot rightfully be charged with any degree of negligence [539] in suffering such default to be taken, nor can she rightfully be •charged with a lack of due diligence after acquiring knowledge of such default, in asking to be relieved therefrom. Upon being served with the summons and complaint, she promptly took steps through her son, M. W. Duffy, for the purpose of employing counsel to appear and defend such action. There is no reason to believe that, in so doing, she and her son did not act in the utmost good faith, believing that they had done everything necessary and requisite to protect her legal rights. It is, we think, equally plain that the firm of Brennan & Gray, whom she supposed that she had employed to appear for her therein, through a misunderstanding of fact, caused, no doubt, by reason of there being two cases instead of but one, as they apparently, through inadvertence, believed, — did not know that there were two cases in which they were expected to appear and answer. The fact that the members of such firm did not understand that they were employed in the case at bar is established beyond peradventure by their affidavits as well as by their conduct, which is strongly corroborative thereof. Had they believed or suspected that there were two cases, instead of one, it is inconceivable that they would have appeared in but •one case. “But it is strenuously argued by respondent’s counsel that, if Brennan & Gray were not made to understand that they were retained in both eases, this is indisputable proof of inexcusable neglect on appellant’s part, or on the part of her agent, M. W. Duffy. In other words, that either Mrs. Duffy or Brennan & Gray are guilty of inexcusable neglect, and that, taking either horn of the dilemma, no relief can be given her. We are unable to concur in this view of the situation. Owing to an evident misunderstanding, Brennan & Gray were not in fact employed in the case at bar. The contractual relation of attorney and client never existed between them, for the obvious reason that th® minds of the parties never met.” This being true, the cause of the misunderstanding is immaterial, provided appellant was in no respect to blame therefor. That she acted as a reasonably prudent person would have acted, and that she, in good faith, believed and relied upon the belief that she had retained Brennan & Gray, and entertaining such belief suffered the default to be taken against her, is, we think, fairly established. And that she learned nothing to the contrary until the month of July, 1908, is equally plain from the record. It therefore [540] follows that notice to Brennan & Gray of such default {conceding that they received such notice) was not imputable to appellant, so as to-charge her with the lack of diligence in making application to be relieved therefrom. After acquiring actual knowledge of such default,, she promptly moved to vacate the same. In the light of these facts-we feel compelled to hold that the learned trial court, in making the order complained of, abused the discretion vested in him. The order appealed from is accordingly reversed, but the judgment will be permitted to stand as security for any judgment that plaintiff may finally recover. All concur, except Morgan, Oh. T., dissenting. Morgan, Ch. J. I cannot concur in the conclusion reached by the court. On the facts recited in the majority opinion I think that there was a contract of employment and no misunderstanding as to the fact that there were two suits. There was neglect that has not been excused in not answering or demurring in time, and therefore clearly no abuse of discretion in refusing to set aside the default judgment.