4 S.D. 119 | S.D. | 1893
This is an appeal from an order denying a motion to set aside and vacate a judgment, and that the defendant have leave to serve an answer. On or about November 20, 1891, the plaintiff commenced an action against the county of Fall River to recover the sum of 15,000, interest and costs, upon a county warrant bearing date November 16, 1891, allowed and issued by the board of county commissioners of said county, and drawn upon the county treasurer, payable out of the court house and jail fund, not otherwise appropriated. It is alleged in the complaint, in substance, that on August 13, 1891, the board of county commissioners of said county duly awarded to said plaintiff a contract for the erection of a court house and jail for said county, he being the lowest bidder therefor; that a contract was duly executed between the county and said plaintiff, and that to secure the faithful performance of the same on his part the plaintiff executed a good and sufficient bond in the penal sum of $30,000; that the plaintiff had, at the time said warrant was issued, nearly completed said court house, and that there was due him on account of said contract more than $5,000; that under and by virtue of said contract the board of county commissioners of said county duly issued to him the county warrant for the said sum of $5,000 above mentioned; that said warrant was duly presented to the county treasurer of said county, and payment demanded, but said treasurer refused to pay the same, and that said treasurer had in his hands, when demand for payment was made, belonging
The motion was made upon the affidavits of S. E. Wilson, Esq.', then state’s attorney for said county, and James Bradley, county treasurer of said county, and a copy of the proposed answer. The part of Section 4989, Comp. Laws, under which this application was made, reads as follows: “The court * * * may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.” This court in Oil Co. v. Lee, 47 N. W. Rep. 955, commenting upon this section, said: “When, therefore, a party makes a showing of such mistake, inadvertence, surprise, or excusable neglect, applies promptly for relief after he has notice of the judgment, and shows prima facie he has a defense, a court should not hesitate to set aside the judgment, and allow him to serve an answer, upon such terms as may be just under all the circumstances of the case.” But the granting or denying an application under this statute is, as will be noticed, left to the discretion of the trial court, and the exercise of that discretion will not be disturbed by the appellate court unless it is satisfied there has been a manifest abuse of such discretion.