22 S.D. 515 | S.D. | 1908
This is an appeal from an order made by the circuit court denying appellant’s motion to vacate and set aside a judgment rendered in an action in which he was one of the defendants and denying him permission to file an answer therein. It is disclosed by the record that on the 31st day of December, 1901, respondent took a default judgment against the appellant in the circuit court of Minnehaha county for the sum of $898.50, including costs, which judgment was not filed for record until the 30th day of July, 1903; that on the 14th day of November, 1906, appellant procured from said court an order to show cause why said judgment should not be vacated and set aside, and why he should not be permitted to-answer the complaint in said action; that on the 2d day of January, 1908, the circuit court entered an order denying said motion on the ground that the application of the appel lant was “not sufficiently sustained by proof to warrant the court in
The order to show cause, which was in effect a motion to vacate and set aside the judgment, was based upon the ground that the summons in the action was never served upon the appellant, and that the judgment therefore was null and void. The order to show cause was accompanied by the affidavits of the appellant and his wife, in which the appellant states that the summons was never served upon him, and that he had no notice of the action; that the first notice he had of said judgment was in the summer of 1906, when in a conversation with Mr. Dougherty, of the firm of Robertson & Dougherty, he was informed by him that such a judgmenL had been entered. Mrs. Cooley in her affidavit states, in -substance, that some time in October, 1901, a copy of the summons was handed to her by one Guilder Olson, chief of police of the city of Dell Rapids, and she was requested by him to hand the same to her son, Charles D. fCooley, and that, upon her son’s return home from town during the day, she handed him this copy, and did not inform her husband, the appellant, in regard to the matter. On the hearing of the order to show cause, the sworn return of Gunder Olson made on the 25th day of October, 1901, was introduced in evidence, in which he states, in substance, that on the 12th day of October, 1901, he served the summons in this action on J. A. Cooley personally by then and there leaving in the presence of and delivering to and leaving with Mary Cooley, the said defendant’s wife, a member of his family, at the defendant’s, J. A. Cooley’s, dwelling house, a true and correct copy of the within, and that he then and there made said service in the manner aforesaid, because on that day he looked and inquired for the said defendant and could not find him, and that defendant’s said wife then and there told affiant that said defendant was on that day out of town. Said Olson also made an affidavit used on the hearing, in which he says, in substance, that he has a clear and distinct recollection of making service in the two actions of Burton against Charles L,. Cooley and J. A. Cooley and Whitcher against Charles D. Cooley and J. A. Cooley and of the circumstances thereof; that in the forenoon of October 12, 1901, G. R. Krause, Esq. the attorney for the plaintiffs in the two
Mr. Krause in his affidavit further states that he had several conversations with the appellant during the time intervening between the date of the judgment in 1901 and the year 1906 with reference to this judgment against him, and that said appellant promised to pay the same from time to time, and that he wrote to the appellant letters, requesting him to settle this judgment, at various times. These conversations referred to by Mr. Krause were denied by the appellant in his affidavit read on the hearing. In these statements Mr. Krause is corroborated by carbon copies of two or more letters written by him made a part of his affidavits in which he speaks of the judgment. Mr. Krause in his affidavit details very fully the various steps taken by him in the proceedings, conversations he had with the appellant, the reasons for his delay in filing the judgment, and the delay in. bringing on the hearing of the arguments on the order to show cause, but, in the view we take of the case, it will not be necessary to further refer to this affidavit.
The statements of Olson as to. the service of the summonses
The case of Matchett v. Liebig, 20 S. D. 169, 105 N. W. 171, was quite analogous in its facts to the case at bar, and, in that case this court held that the circuit, court committed error in setting aside and vacating the judgment. In its opinion this court say: “It would be a very dangerous rule to establish that a defendant, after a default judgment had been entered against him, might, upon the affidavit of himself or his wife, denying the service as claimed to have been made, have the same vacated and set aside, where the proof of service is as full and complete as that in the case before us. * * * Upon grounds of public policy, therefore, the return of the officer, though not regarded as conclusive, should be strong evidence
It is further contended by the appellant that, notwithstanding the claim made by him that the court was without jurisdiction to enter the judgment for the reason that he had not been served with process in the action, hi,s affidavits show a case for the exercise of the court’s judicial discretion for vacating and setting aside the judgment and permitting him to file an answer therein, and that the court erred in not granting him such relief. But this contention of the appellant is not entirely consistent with the theory that the judgment was null and void for the .reason that process was never served upon him. Assuming, however, that a party might appeal to the court for relief under the provisions of section 151 of the Code of Civil Procedure notwithstanding his claim that the judgment was void as to him, still the party must satisfy the court that his failure to answer the complaint is the result of mis-fjake, inadvertence, surprise, or excusable neglect. The appellant in this case fails to show 'such mistake, inadvertence, surprise, or excusable neglect as would entitle him to the exercise of the judicial discretion pi the court in his favor. In the view we take of the c,ase, therefore, it will not be necessary to review the evidence on the part of the appellant or to discuss it more iully in this opinion.
We are clearly of the opinion that the court committed inp error in denying the motion, and the order of the circuit court is therefore affirmed.