Page:North Dakota Reports (vol. 3).pdf/41

 CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NORTH DAKOTA

Herman P. Gauthier vs. Felix Rusicka.

Opinion filed June 4th, 1892.

Vacation of Judgment—Failure to File Affidavit of Merits.

It is error to vacate a Judgment, under § 4939, Comp. Laws, where defendant fails to make an affidavit of merits, his answer not being verified.

Appeal from District Court, Walsh County; Templeton, J..

Action by Herman P. Gauthier against Felix Rusicka to recover for services as physician and surgeon. Judgment for plaintiff. From an order vacating the judgment, plaintiff appeals.

Reversed.

D. W. Vorkey, (McLaughlin & Morrison, of counsel,) for appellant.

No brief filed for respondent.

Corliss, C. J. The appeal is from an order vacating a judgment. The motion was made on the ground of surprise to defendant. The complaint was verified. The answer was not verified, but was received by plaintiff without objection. The case being at issue on the calendar of the District Court in and for the County of Walsh, the defendant failed to appear when the cause N.D.R.—I.