Page:North Dakota Reports (vol. 48).pdf/265

 and that the action of the trial court in granting the motion to vacate the judgment was not an abuse of discretion.

Opinion filed June 22, 1921. Rehearing denied September 10, 1921.

Appeal from district court of Dunn County, Pugh, J.

Affirmed.

Halpern & Rigler, for appellant.

Tobias D. Casey, for respondents.

, J. This is an appeal from an order vacating a judgment in an amercement proceeding. It appears that the plaintiff in this action was, in December, 1917, the owner of a note and chattel mortgage upon a Ford automobile which had been given by one T. E. Flowers. An action was instituted to foreclose the mortgage and obtain a deficiency judgment. Upon the filing of the complaint a warrant of seizure was issued to the defendant Bang as sheriff of Dunn county, directing him to seize the mortgaged property. It later appeared that one Boyd claimed a lien upon the property for repairs, and a complaint in intervention was filed, setting up his claims. Flowers defaulted, and the action was prosecuted to judgment and judgment entered in favor of the plaintiff. On June 27, 1919, a special execution was issued, directing the sheriff to sell the automobile in satisfaction of the judgment. The execution was placed in the hands of the sheriff on July 1, 1919. Inquiries were later made by the plaintiff’s attorney concerning the execution, and, it appearing from such inquiries that the execution had not been returned, summary proceedings in amercement were begun against the sheriff. The motion was postponed from time to time and was not decided by the trial court until near the expiration of the term of the judge to whom it was presented. Upon the showing made on behalf of the plaintiff judgment was ultimately entered, amercing the sheriff. At the time the judgment was entered the court stated that the execution would be stayed for 30 days to allow the defendant sheriff time to move for opening the judgment. Within the 30 days, notice of motion to vacate the judgment was served upon the plaintiff’s attorney. The motion was supported by the affidavit of the sheriff, which, among other things, stated that he had never been able to obtain