22 S.D. 501 | S.D. | 1908
It is alleged in the complaint, in substance: (i) That on May 22, 1903, the defendant executed and delivered to the plaintiff his promissory note, whereby he promised to pay the plaintiff $575, on November 1, 1903, with interest payable annually at the rate of 6 per cent, per annum from date until paid. (2) That no part of -said note has been paid; except $50, paid January 15, 1904; $417.10, paid January’26, 1904'; an'S ■ $20.75, paid'Feb
It will be assumed that the appeal was taken from both the judgment and order, though the abstract fails to disclose what was appealed from. The errors assigned are, in effect, that the court erred in rendering the judgment it did and in denying defendant’s motion to set aside the same for the following reasons: (i) That said judgment was not supported by the evidence introduced, in that there was no evidence whatever introduced which proved that there was due and owing the plaintiff from the defendant, at the time of the trial of this cause, the sum of $105 and interest at 6 per cent, per anum. (2) That the matter in controversy had been settled by an agreement between the plaintiff and defendant, whereby the defendant was to pay the plaintiff a specified sum of money upon plaintiff dismissing the cause, and this plaintiff had failed to do. (3) That defendant’s attorneys, at the time the case was called for trial, withdrew from the case without defendant’s knowledge or authority, and without notifying the defendant of such withdrawal until after the case had been tried.” The second ground of the motion was clearly untenable. Whether the controversy had been settled was an issue of fact to be determined upon a trial of the action, and not upon a motion to open the default or vacate the judgment. Therefore, taking the view most favorably to the defendant, the only questions properly presented by this appeal are (1) whether the court erred in rendering judgment upon the evidence introducéd, and (2) whether it was an abuse of discretion to not open the default.
Regarded as an application to open the default or for relief from “a judgment taken against him through his mistake', inadvertence, surprise, or excusable neglect,” defendant’s motion was addressed to the sound legal discretion of the trial court, and its ruling thereon should not be disturbed in the absence of manifest abuse of such discretion. Rev. Code Civ. Proc. § 151; Evans v. Fall River County, 4 S. D. 119, 55 N. W. 862; Pettigrew v. City of Sioux Falls, 5 S. D. 646, 60 N. W. 27; Bank v. Hurley, 13 S. D. 18, 82 N. W. 87. The only mistake or “oversight” on the part of the defendant disclosed by his affidavit was his failure to inform his attorneys of the alleged settlement before their withdrawal from the cause. In the absence of any showing as to the circumstances attending such failure, it must be regarded as inexcusable, and the learned circuit court clearly was justified in refusing to grant the relief sought.
The judgment and order appealed from, are affirmed.