Getchell v. Great Northern Railway Co.
North Dakota Supreme Court
Appeal from the District Court for Cavalier County; Cowan, J. Affirmed. An affidavit of merits is required only where application to open default is based upon excusable neglect, mistake, etc. Eev. Codes Sec. 6884. Judgment is to be set aside where the evidence is sufficient to show to tbe court that no service of the summons had been made upon defendant. Rice v. Griffith-, 9 Iowa, 539 ; Martinson v. Marzolf, 14 N. D. 309, 103 N. W. 931; Bauer v. Union Gent. L. Ins.
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Appeal from the District Court for Cavalier County; Cowan, J. Affirmed. An affidavit of merits is required only where application to open default is based upon excusable neglect, mistake, etc. Eev. Codes Sec. 6884. Judgment is to be set aside where the evidence is sufficient to show to tbe court that no service of the summons had been made upon defendant. Rice v. Griffith-, 9 Iowa, 539 ; Martinson v. Marzolf, 14 N. D. 309, 103 N. W. 931; Bauer v. Union Gent. L. Ins. Go. 22 N. Í). 435, 133-N. W. 988; Skjelbred v. Shafer, 15 N. D. 539, 125 Am. St. Rep. 614,, 108 N. W. 481; Stubbs v. McGillis,…
1Opinion of the CourtBurke, J.
This is the second time this case has been before us. See 22 N. D. 325, 133 N. W. 912. Briefly stated, the summons and complaint in this action were served upon the acting station agent of defendant at Langdon, North Dakota, but said agent neglected to notify the head office of the receipt of the papers, and judgment was entered against the railway by default. Thereafter, an application was made' *489to reopen said judgment. This application was based upon the affidavit of the said station agent, who deposes that he does not remember that said papers were served upon him; the affidavit of the…
2Cases cited7 opinions
- Brown v. Chicago, Milwaukee & St. Path Railway Co.North Dakota Supreme Court · 1903
- Racine-Sattley Manufacturing Co. v. PavlicekNorth Dakota Supreme Court · 1911
- Sargent v. KindredNorth Dakota Supreme Court · 1895
- Wheeler v. CastorNorth Dakota Supreme Court · 1903
- Ord Hardware Co. v. J. I. Case Threshing Machine Co.Nebraska Supreme Court · 1906
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3Cited by1 opinion
- Jesse French & Sons Piano Co. v. GettsNorth Dakota Supreme Court · 1923