181 N.W. 841 | S.D. | 1921
-This action was'brought ■ to-recover from
In 2 Waite’s Practice, p. 4x3, the rule is announced that:
“Where the defendant shows, upon- the application, that he*608 has a reasonable excuse for not having answered within the proper time, the order will be granted almost of course.”
This court has, in numerous cases, held that when a judgment “has been obtained against a party through his mistake, surprise, inadvertence, or .excusable neglect, and he promptly applies to the court for relief, the court should be liberal in granting such relief.” Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761; Judd v. Patton, 13 S. D. 648, 84 N. W. 199.
“The facts constituting the defendant’s defense had been fully and fairly stated to affiant by defendants through their attorneys, Stockton & 'Stockton, and that this affiant believes that the contentions of the defendant in their said case in.which they answer is a good, reasonable, and valid defense, and one which, should properly be contested in the courts.”
The letter addressed to' Carlson, and which formed part of the clerk’s affidavit, set forth the claimed facts, and are the same matters that are pleaded in the proposed answer, and which present two defenses, both meritorious, if true; one being a direct denial of the allegation in the complaint that defendant “has succeeded to all * * * obligations of the said Wells, Fargo & Co.” ; the other alleging that the contract of shipment entered into by plaintiff and Wells Fargo & 'Company complied with the federal statute then in force and under such contract it w(as “agreed that said express company should not be liable in any suit to recover for the loss * * * of said property unless the same should be instituted within two years * * * after a reasonable time for delivery has elapsed,” and alleging that this action had not been brought within such time.
In the light of all the facts before it, the trial court abused its discretion when it refused defendant’s application. The order appealed from is .reversed, and the trial court directed to enter an order vacating the judgment entered by such court, and allowing defendant to serve and file the proposed answer.