Sargent v. Kindred
North Dakota Supreme Court
Appeal from District Court, Cass County; McConnell, J. Action by Homer E. Sargent against Charles F. Kindred. From orders setting aside a judgment for plaintiff, and refusing, in a supplemental proceeding, to vacate said order, plaintiff appeals. The defendant did not apply for relief from the judgment entered against him, within a year after he had knowledge of the judgment. Section 4939, Comp. Laws.
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Appeal from District Court, Cass County; McConnell, J. Action by Homer E. Sargent against Charles F. Kindred. From orders setting aside a judgment for plaintiff, and refusing, in a supplemental proceeding, to vacate said order, plaintiff appeals. The defendant did not apply for relief from the judgment entered against him, within a year after he had knowledge of the judgment. Section 4939, Comp. Laws. Service of notice of judgment upon the attorney who had appeared in the cause was sufficient. Merriam v. Gordon, 22 N. W. Rep. 563; Bell v. Lumber Co., 32 N. W. Rep. 561. And is notice to the…
1ConcurrenceCorliss, J.
I am unable to concur in the views of my associate, but I reach the same conclusion on a different line of argument. The defendant was, on the motion, asking a favor of the trial court; but he failed to present any affidavit of merits on the motion. This would clearly be fatal to his claim for relief, had there been no verified answer in the case (Gauthier v. Rusicka, 3 N. D. 1, 53 N. W. 80,) and I do not think that the fact that he had already served a verified answer excused him from making such an affidavit. To require it imposes no great burden on a man who honestly believes that on the…
2Cases cited8 opinions
- Sargent v. KindredNorth Dakota Supreme Court · 1895
- Brown v. Farmers Mutual Automobile InsuranceWisconsin Supreme Court · 1960
- Worth v. WetmoreSupreme Court of Iowa · 1893
- Morgan v. McDonaldCalifornia Supreme Court · 1886
- Mowry v. HillWisconsin Supreme Court · 1860
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