151 N.W. 281 | S.D. | 1915
In January, 1911, the plaintiff began this action by the service of 'summons, upon the defendant Clute to recover the amount of certain premiums upon a policy of hail insurance. The defendant appeared and demanded a copy of the complaint, which was served uopn him on February 28, 1911. In August, 1911, defendant’s attorney prepared an answer and counterclaim and sent the same to plaintiff’s attorney, which was returned on August 22, 19i.i; 'because served too late. Nothing further.was ■done by defendant until June 24, 1912, when his attorney prepared an affidavit and motion to vacate the default and for leave to- answer, and served the same, together with a -copy of his .proposed answer, upon p-laintiff -on June 29, 1912. The motion was heard by the -court in October, 1912, at which time a supplemental affidavit by defendant’s attorney -w-as filed. Neither of these affidavits purported to show any ex-ou-se for that part of the delay which occurred subsequent to August 22, 1911; nor did either affidavit comply with circuit court rules. 10 and 11 (see prefix to 22 S. D. 7), which require an affidavit of merits. Notwithstanding -such lack, the trial court, over plaintiff’s objection, permitted the filing of the answer and counterclaim.- The cause went to trial, which resulted in a judgment against plaintiff in the sum of $971.44; one half of which was directed to be paid to defendant Clute, and the -other half -of which was directed to be -paid to John D. Lynch, as trustee in bankruptcy of the defendant Clute. The twelfth finding ’of fact recited:
“That on or about the 13th day of February, 1913, the court, without objection on the part of plaintiff, on application of the said John D. Lynch, wherein the said John D. Lynch represented to the -court that he had an interest in the matter in litigation as against the plaintiff and as trustee of Cl-ute’s estate, made an order allowing the said John D. Lynch to intervene in said action as a co-defendant with- the said W. W. Clute.”
The plaintiff 'has appealed from the judgment and from the order denying a new trial.
“That affiant believes, after a full investigation of all the facts connected with said action, that the defendant has a good and meritorious defense to the .plaintiff’s cause of action on the merits, and that he has a true, just, and legal counterclaim against the plaintiff, as set out in the answer, a copy of which is hereto, attached.”
These rules contemplate that the defendant shall make the affidavit; that he shall swear that he has fully and fairly stated his case to bis counsel; and that he is advised by such counsel after such statement, and verily believes, that he has a good and substantial defense to the action on the merits. We do not say that there may not be circumstances in which the affidavit might properly be made by an agent or attorney of the party, but we do hold that, when the affidavit is so made, it shall affirmatively appear that the attorney is acquainted with the facts relied upon as a defense. Pettigrew v. Sioux Falls, 5 S. D. 646, 60 N. W. 27; Hayne on New Trial and App. (Rev. Ed.) 310. In case the
For the want of an affidavit of merits, and for the want of any showing of excuse for the delay from August 22, 1911, to June 24, 19x2, in applying for leave to have the default vacated and to answer, we must set aside the order of October 12, 1912, and all proceedings thereafter had in said pause.
Inasmuch as the alleged errors -occurring at the trial may never again arise, we do not deem it necessary to discuss or consider them.
The judgment and order appealed from are reversed.