Fylling v. Mork

Grace, J. This is an appeal from an order of the district court of Bottineau county, denying defendant’s application for vacating of a certain default judgment, taken against him, by plaintiff. The material facts, as disclosed by the affidavit, in support of the application to vacate the judgment, are substantially as follows: The plaintiff, at the time of the commencement of this action, was the wife of Peter Fylling, to whom she was married, on the 29th day of July, 1915. The defendant was a witness to the marriage ceremony. In 1907, the defendant immigrated to this country, from Norway. In the years of 1911 and 1915, he was a resident of Bottineau county. Between the 1st day of April, 1911, and the 1st day of June of that year, he worked for plaintiff’s father, Sofus Mork, upon his farm. During that time, plaintiff was unmarried, and lived at her father’s home. Shortly after .the marriage, plaintiff and her husband moved to a farm near Landa, in Bottineau county, where they have since resided. About January 1, 1916, the defendant moved to McKenzie county, where he has since resided, upon a government homestead, which is near the residence of Sofus Mork, by whom the defendant is, considerable of the time, employed. It is claimed by plaintiff, that on or about the 1st day of January, 1911, at Bottineau county, the defendant made an indecent assault upon plaintiff, and debauched and carnally knew her. She was at that time sixteen years of age. That on the 15th day of July, 1915, in the same county, the defendant made another similar indecent assault upon her. She claimed thereby to recover damages, in the sum of $1,000. She had judgment, by default, for $521.15. The defendant is thirty-three years of age, and is the brother of Sofus Mork, and the uncle of plaintiff. It appears the plaintiff never disclosed to her father, or any of her people, anything regarding the alleged indecent assault, nor did she disclose it to anyone until about the 1st day of January, 1919, when it was disclosed to Peter Fylling, if his statements, with reference thereto, in his counteraffidavit, are proper to be considered in this case. This was approximately five years after the alleged commission of the first assault. — 121 — It seems that sometime prior to February 4, 1919, Peter Fylling had written the defendant a letter, demanding money from the defendant. It seems defendant had also, at about that time, received a letter from the plaintiff, and, in referring to her letter, he said: “The last verse that was written by Marie, herself, is the most thoughtless accusation that yet has been on paper.” Defendant answered Fylling’s letter on February 4th, and the tenor of the answer is a refusal to comply with the demands of plaintiff. It appears that the plaintiff then placed the matter in the hands of W. J. Cooper, an attorney at law, at Westhope, North Dakota. He wrote the defendant a letter on January 13, 1919, notifying the defendant he had been retained by plaintiff, to represent her in her claim against defendant, for damages for the alleged unlawful assaults. He also called the attention of the defendant to the fact that “an action of this kind is most unfortunate for both parties concerned, and at my suggestion we are giving you an opportunity to adjust the matter out of court. “I am inclosing you a copy of the papers, so that you may be advised of the action we shall bring in case of a failure to agree on a settlement of the merits. You will understand that the mailing of this paper is not a commencement of an action, but that it will be necessary to have the sheriff or some other party serve the papers upon you. “I will be glad to wait a short time for your proposition before placing the papers in the officer’s hands, for service.” It further appears, from the letter, that in order to save expense and the embarrassment, a settlement for somewhat less would be made, if made out of court. About two weeks later, plaintiff’s attorney wrote another letter, stating, in effect, that they could not permit the matter to drag, and that if they did not hear from him within ten days, they would place the papers in the hands of the sheriff for further proceedings. On February 8th, Cooper wrote another letter to defendant, stating to him that Mr. Fylling had called upon him, and reported that the defendant had written him, that he was claiming to be innocent of the whole affair. Then followed another threat on the part of the attorney, that, if he did not hear from him, with some kind of a proposition of settlement, he would forward the papers to the sheriff for service, again giving defendant ten days’ time to consider the matter. — 122 — On February 17th, the defendant wrote Cooper to the effect that he had received his letter, and would let him know that he was not guilty, and did not want to hear any more about the matter. To this letter Cooper replied on the 20th, stating that he was sending the papers to the sheriff for service. The next letter Cooper claims to have written the defendant was on July 2d, when he gave notice that judgment was rendered against defendant, for $500 and costs. Defendant denies receiving this letter. The defendant was served with summons and complaint, in April, 1919. He makes affidavit, in substance, as follows: That about a week after receiving those papers, he accidentally permitted them to become rain soaked in a storm which occurred about May 1st, to which he was exposed; that he had these papers in his hip pocket, and that, as a result of such wetting, they were damaged and mutilated to such an extent, that they were unintelligible; that prior to that time he had not read them, except parts of the complaint; that he did not understand them, or that they required any formal answering by him, or that it was necessary for him to show them to a lawyer; that he understood and believed that such papers constituted only a demand on him, for money, which he could ignore the same as he had letters and demands from the plaintiff’s attorney; that he understood and believed no judgment, for money, could be entered against him, without the charges made in the complaint being proved in open court, in his presence; that he had never seen suit papers before; that he believed he would receive notice of the time and place of trial, and having not received the same, understood that the matter had been dropped'by the plaintiff, and that he gave it no further thought, and did not consider it seriously until the sheriff served a notice of levy on his land, on about the 9th day of August, 1919, which he claimed was the first notice he had of any judgment having been taken against him; that he immediately consulted George F. Shafer, an attorney at l'aw, of Watford city, North Dakota, and detailed, to him, a full and complete true statement of all the facts and circumstances surrounding the transaction, who then advised and informed him, that he had a good, legal, and meritorious defense to the alleged cause of action. And defendant’s affidavit further shows, that he never attended school in the United States, is not very well versed in the English language, reads it with great difficulty, and — 123 — does not understand legal terms, and did not understand the serious nature of the action until so advised by his attorney, and also states that the judgment was entered against him through mistake and excusable neglect. The defendant, with his application and affidavit, to vacate the judgment, tendered a good and sufficient answer, in the form of a general denial of the allegations of the complaint. The only error assigned is that of the trial court, in its order of September 23, 1919, denying the motion of defendant for the vacation of the judgment. The question presented in this case is: Did the trial court abuse its discretion in refusing to vacate the default judgment ? We think it did. We think the showing was clear that the default judgment was taken by mistake and excusable neglect of the defendant. While he, to some extent, understood the English language, it is clear that he had not a very extended knowledge of it. His letter to Fylling was written wholly in Norwegian, .and his statements in his letters written in English, are interspersed, here and there, with words written in the Norwegian language, which would tend to show that he had no great knowledge of the English language. It is also shown that he had not sufficient understanding of the English language to comprehend the meaning and legal effect of the suit papers served upon him. We think, also, perhaps the defendant’s neglect was excusable, in view of the peculiar circumstances that preceded or followed the demand by plaintiff, of defendant, for the payment to her of a sum of money as damages. The fact that plaintiff, for about five years, said nothing to anyone in regard to an assault having been made upon her by defendant, is a circumstance which may be considered, with others which affect defendant’s neglect in failing to appear and answer in the case. It would have some tendency to support defendant’s claims, that he regarded Fylling’s demand' on him, for money, too ridiculous to be taken seriously; that he regarded the letters, written by the attorney, as he stated, as being merely a bluff, to induce the defendant to pay over money, by threats of intention to charge him with a serious offense; that he treated the whole matter as an attempt to blackmail — 124 — him; that not being guilty of the charge, he never believed that the plaintiff would take any action in court. If the defendant thus believed, it might be some justification and excuse for his neglect. When all of the letters are read and considered* in connection with the further fact, that at the very inception of the matter, the attorney inclosed the suit papers by mail to the defendant* there would appear to be some justification for defendant’s attitude. If the purpose of inclosing the suit papers to the defendant was not to-instill fear in his mind, then, what was the purpose in doing so? Certainly, such procedure is unusual and irregular. Such procedure was not intended to be the commencement of the action, as plainly appears from the letter written, with which the papers were inclosed. Such papers, and the repeated threats of procedure in court, could well be the means of confirming defendant in his theory, that the whole procedure was one to extort money from him, and be the very cause of his neglect to give timely attention to the matter, after the service* by the sheriff, of the suit papers upon him. The attorney for the plaintiff may not have intended to deceive, mislead, or frighten defendant, but we cannot say that, on the whole record* there is no justification for defendant’s neglect. If defendant is innocent, and his claim is correct, his good name and reputation ought not to be impaired, nor his property and money taken from him, until after a fair and full trial has been had, where, within the time allowed by law, he has acted promptly, to vacate the judgment by default, which was taken against him. In so far as his affidavit, in support of his application to vacate the judgment, deals with the merits of the case, it cannot be controverted* as to the facts therein stated, as a defense to the cause of action. It may be controverted only in such matters as relate to the cause assigned for its vacation. Where there is a sufficient affidavit of merits, and an answer disclosing a meritorious defense, and reasonable excuse for the default, and no substantial prejudice is shown to have risen from the delay of the application to open a default judgment, we think it the better rule, that it should generally be vacated, and for these reasons, in this case* we think it was an abuse of discretion for the trial court not to vacate the judgment. Northern Commercial Co. v. Goldman, 37 N. D. 542, — 125 — 164 N. W. 133; Racine Sattley Mfg. Co. v. Pavlicek, 21 N. D. 222, 130 N. W. 228. The order appealed from is reversed, with permission to the defendant to interpose answer, within fifteen days after filing of the remittitur herein and, upon payment of the costs taxed in the judgment rendered, less appellant’s costs and disbursements on this appeal. Robinson and Bronson, JJ., concur. Birdzell, J., dissents.