Page:North Dakota Reports (vol. 3).pdf/220

 in this case, involve the very vitality of the mortgage, or the existence of any indebtedness under it, or the validity of a counclaim or other defense claimed by the mortgagor,—questions which the parties interested are entitled to have tried and determined by the usual methods of trial, where the testimony offered may be sifted, and admitted or excluded, in whole or in part, under the established rules of evidence, and where the witnesses on either side are subject to the test of cross-examination.” In our judgment it will follow logically from the reasoning of the court in the case cited that the use of rebutting affidavits upon a motion to vacate the judge’s order is not contemplated by the statute. If the facts embodied in the affidavit made by the mortgagor, or in his behalf, cannot be controverted before the judge makes his order, we certainly can see no valid reason why the controversy should be opened later, and after the foreclosure proceeding had been arrested. The entire scope of the statute is to clothe the proper Judge of the District Court with authority, at his discretion, to act fully and finally in the premises, and to take such action upon an ex parte showing. We do not wish to be understood, however, as holding or intimating that, if such an order is made improvidently, it cannot be vacated by the judge who made it, either upon application made by the mortgagee, or upon the judge’s own motion; but we do say that in our opinion no affidavits can be read upon such application, tending to rebut the showing made by the mortgagor as to his alleged defense or counterclaim. Such facts are not intended to be litigated by such methods and such machinery as are furnished by the proviso in question. This proceeding originates in, and is limited by, a proviso contained in a single section of the statutes which authorize and regulate foreclosures by advertisement. The term of the proviso are scanty, and nothing can be. discovered in its language looking towards any ulterior proceeding to be built upon the statute which is not expressly created by the terms employed in the statute. Its words are few, and their meaning is obvious. A mortgagor who is a layman can easily write out the brief affidavit