143 N.W. 895 | S.D. | 1913
This is an appeal from an order vacating a default and permitting defendant to answer. The order continued the judgment as security and muniment of title and provided that it “shall in no way whatever affect the rights of persons who may have acted' upon the faith of the judgment herein, though they may in law be plaintiff’s successors in interest.” Prior to considering the merits, we must dispose of respondent’s motion to dismiss the appeal.
Appellant attacks the order vacating the default because defendant’s application was not timely and because -there was no sufficient showing of mistake or exousable neglect to justify the making of the order. It appears that judgment was entered on December 7, 1909, and that no steps were taken by the then defendant, Joseph Harker, -to vacate the judgment until October 12, 1911. It apears from Harker’c affidavit that he never heard or knew that judgment had been obtained until May x, 1911; that at said time he was at his home in Los Angeles, Cal.; and that he did not return'to South Dakota until September 18, 1911.
We think the quoted words from that letter are too vague and uncertain to warrant the interpretation that Bergakker ever conveyed any information to Harker which would tend to show notice of the judgment; nor can the letter to Bergakker be properly construed as a notice of the judgment to him, as tenant of Harker.
In view of the above and of similar holdings in other cases, and particularly in view of the fact that by the court’s order the opening of . the default was made of no effect as against purchasers of the land in good faith, we do not feel warranted in saying that-the trial court has abused that discretion which the law commit's to it.
The order appealed from is affirmed.