Krein v. Row

Robinson, J. This is an appeal from an order denying a motion to vacate the default herein. The motion is based on a regular affidavit •of merits and on a proposed verified answer and an affidavit excusing the default. The action is on a promissory note made by defendant to the plaintiff on October 14, 1920, for $1,485 and interest. On March 29, 1921, the summons and complaint were served on defendant. On May 17, 1921, judgment by default was entered. In September, 1921, •defendant moved to vacate the default. The proposed answer shows that prior to October 14, 1920, at Langdon, N. D., the plaintiff and defendant had been in partnership in the garage business; then they agreed to dissolve the partnership; the plaintiff did transfer to defendant his interest in the partnership property, and in writing agreed with said Row that “he shall not, for a period of five years, become interested in the ownership of any garage in the city of Langdon, without the written consent of W. W. Row”; that, contrary to the agreement, in the month of April, 1921, the plaintiff did open a garage in Langdon, and since then has continued to operate the same to defendant’s damage, $2,500; that the note in question was given in consideration of said agreement, and that the good will of the garage business was the real consideration for the promissory note; that before the entry of judgment Row consulted with Price & Pierce, stating the facts aforesaid, and was told by them that he would have to pay the note because he had made default in payment, according to the-terms of the contract; that he relied on their advice, and because of it failed to answer or to consult with any other attorney until September 15, 1921. Now, while defendant does make a complete affidavit of merits and a proposed verified, answer showing a meritorious defense, it is true that he is contradicted by other affidavits, both in regard to the excuse for his default and the merits of defense. But the rule is that on a motion to vacate a default the affidavit of merits may not be impeached, and the court should not try out the merits of the defense. Bank v. Brandon, 19 N. D. 489, 126 N. W. 102, 27 L. R. A. (N. S.) 858; Westbrook v. Rice, [1128] 28 N. D. 325, 148 N. W. 827; Sargent v. Kindred, 5 N. D. 8, 19, 20 63 N. W. 151. . The excuse or reason for the default appears quite probable, though by no means conclusive. However, an error in granting a trial while retaining the lien of the judgment cannot injure the plaintiff in excess of the cost of the trial, while an error in denying a trial may injure defendant more than $1,000. Hence the order is that the default be vacated and a trial granted, with leave to serve the proposed answer, and that the lien of the judgment herein remain, and that it may be enforced to the extent of any judgment that may be recovered on a trial of the action. Order reversed and modified, without costs. BirdzEll, C. J., and Gracb, J., concur.