#### STATE BANK OF MENAGHA v. A. J. O’LAUGHLIN.

(164 N. W. 135.)

Default judgment — application for —relief from — mistake — inadvertence — surprise or excusable neglect — discretion of court — addressed to — particular facts in each case — order on — will not be disturbed — — except for abuse.

1. An application, under § 7483, Comp. Laws 1913, to be relieved from a default judgment on the ground of mistake, in advertence, surprise, or excusable neglect, is addressed to the sound judicial discretion of the trial court on the particular facts existing in the case, and the trial court’s ruling will not be disturbed on appeal unless an abuse of discretion is shown.-

*533Default judgment —invocation of statute —due diligence —in moving.

2. A party who desires to invoke this statute must exercise reasonable diligence in presenting the application to vacate the default judgment.

Opinion filed July 21, 1917.

Appeal from District Court of Cass County, North Dakota, *Pollocle,*J.

From an order refusing to vacate a default judgment, defendant appeals.

Affirmed.

*Spaldmg & Shure*and *Garfield Bustad,*for appellant.

*Fowler & Green,*for respondent.

Christianson, J.

This is an appeal from an order denying defendant’s application to set aside a default judgment. The summons and complaint in the action were served upon the defendant on March 3, 1915. The complaint alleges that the defendant had converted a certain horse upon which the plaintiff held a chattel-mortgage lien for the sum of $200. ;

It appears from the affidavits and the evidence offered upon the hearing of the motion to set aside the default judgment, that a few days after the service of the summons and complaint, the defendant had a conversation with Green, one of the attorneys for the plaintiff, but the affidavits are to some extent in conflict as to what was said during such conversation. The defendant in his affidavit claims that he exhibited to Green the horse which he had purchased from plaintiff’s mortgagor, and called Green’s attention to certain matters which defendant claims tended to show that the horse purchased by defendant was a different horse from the one covered by plaintiff’s mortgage. Defendant further claims that he believed that he had succeeded in convincing Green of the correctness of his position. Green in his affidavit gives a somewhat different version of the conversation, and states that he informed the defendant that he (Green) knew nothing about the transaction, that his partner, Mr. Fowler, handled the case, and that the defendant had better see Fowler in regard thereto.

It is undisputed, however, that on December 11, 1915, attorney Green again met the defendant, and had a conversation with him in the courthouse in Moorhead, Minnesota, and called defendant’s attention to the fact that the case was still pending and that something must be done *534about it. Defendant again referred to tbe former conversation, and made the same claim witb respect to tbe borse, Green than stated tbat defendant must be mistaken in bis contentions, and tbat be ought to come over and see Fowler and talk tbe matter over witb bim. At a later date, Green called defendant on tbe telephone, and informed tbe person answering tbe phone, at defendant’s residence in Moorhead, Minnesota, tbat tbe defendant would have to take care of tbe matter or judgment would be entered. Defendant paid mo further attention to tbe matter, and on January 5, 1916, plaintiff’s attorney sent tbe following letter to tbe defendant:

> January 5, 1916.

> State Bank of Menagba,

> vs.

> A. J. O’Laugklin.

> A. J. O’Laugklin, Esq.,

> 317 7th St. S.,

> Moorhead, Minn.

> Dear Sir:

> Will you please come over to tbe office to-morrow so tbat we can talk over tbat borse matter ? Our clients are urging us to take some action, and we will have to enter judgment unless some disposition is made of it.

> You bad better call up our Mr. Fowler so tbat be will be sure to be in tbe office when you come over.

> Very truly yours,

> Fowler & Green.

' Tbe defendant does not deny tbat be received this letter; but be paid no attention to tbe matter, and on March 6, 1916, or about two months thereafter, judgment was entered against bim upon proofs duly made before tbe court. On March 15, 1916, plaintiff’s attorneys wrote a letter to defendant, advising bim of tbe entry of tbe judgment, and further notifying bim tbat, unless it was paid, execution would be issued. On tbe same date tbe defendant called upon Attorney Rustad, of Moor-head, Minnesota, and Rustad wrote a letter to plaintiff’s counsel witb respect to tbe matter. Shortly thereafter Rustad requested plaintiff’s attorneys to stipulate for a vacation of tbe judgment, but plaintiff’s counsel refused to so stipulate.

*535No further attention was paid to the matter either by defendant or his attorney until after September 1, 1916, when plaintiff instituted a garnishment action against the county of Cass as garnishee,' and garnished certain moneys belonging to the defendant. The motion to vacate the default judgment was made within a short time thereafter.

Under our statute (Comp. Laws 1913, § 1483) an application to be relieved from a default judgment on the ground of mistake, inadvertence, surprise, or excusable neglect is addressed to the sound judicial discretion of the trial court on the particular facts existing in the ease, and consequently the ruling will not be disturbed on appeal unless it is plain that the trial court abused its discretion in determining the motion. See Wakeland v. Hanson, 36 N. D. 129, 161 N. W. 1012.

The rules of law governing applications of this kind are well settled. While it is true that such applications are ordinarily granted where the moving papers disclose a good defense upon the merits, and a reasonable excuse for the mistake, inadvertence, surprise, or neglect which occasioned the default, it is also true that the moving party must show himself entitled to the relief which he seeks. And to do this he must show: (1) That he has a good defense upon the merits; (2) a reasonable excuse for the mistake, inadvertence, surprise, or neglect which occasioned the default; and (3) reasonable diligence in presenting the application to vacate after knowledge of the judgment. “If the party actually knows that a judgment has been rendered against him,” says Black (Black, Judgm. § 313), “and the judgment is not simply and merely void, it is the undoubted rule that he must exercise reasonable diligence in procuring its vacation, and that his unexcused laches or •delay, unduly protracted, will preclude him from obtaining the relief sought. In deciding upon an application to strike out a judgment after the term is past, for fraud, irregularity, deceit, or surprise, the court acts in the exercise of its quasi equitable powers, and in every such -case requires the party making the application to act in good faith and with ordinary diligence.”

In the case at bar the undisputed facts negative, rather than affirm, treasonable diligence in moving to set aside the judgment. It is undisputed that the defendant was informed on December 11, 1915, that he must take some steps to protect his interests in the action; that he was informed to the same effect by letter on January 5, 1916, and that on *536March 15; 1916, he was informed that judgment had been entered; that immediately thereafter he and his counsel were informed by plaintiff’s attorneys that it would be essential for the defendant to move to vacate the judgment, and that plaintiff’s counsel would not stipulate for a vacation of the judgment. The defendant and his counsel paid no further attention whatever to the matter until after the garnishment action had been brought in September, 1916; and there is absolutely no attempt on the part of the defendant or his attorney to excuse the delay in moving to set aside the default. The defendant and his attorney had full knowledge of the attitude of plaintiff’s counsel. Plaintiff’s attorneys in no manner imposed upon or sought to take any undue advantage of the defendant; they dealt with him in the utmost fairness.

We are agreed that the trial court properly denied the application to vacate the judgment. Order affirmed.