225 N.W. 57 | S.D. | 1929
This action was commenced by service of a relief summons by delivery of a copy thereof to C. J. Semans, secretary and a trustee of defendant hospital, on August 26, 1927. 'Defendant failed to answer, and judgment by default was entered against it on November 5. On November 26 defendant made a motion to set aside the default and for leave to answer, and from the order denying the motion it appeals. No complaint was served with the summons.
The affidavit of C. J. Seamans set forth that appellant is a charitable institution conducted as a public hospital under the management of the 'Women’s Home Missionary Society of the M. E. Church; that its management is vested in a board of trustees consisting of 12 members, all of whom act without compensation, and the direct management of the hospital is under the charge of Elva L. Wade; that on the evening of August 26, 1927, the summons was served upon him at his home in Rapid City; that he had just returned by auto from a long and tiresome trip to- Mitchell, and that 'he read said summons and laid it aside, intending to give it attention the next day; that on the following morning his three year old daughter, who had been ill for some days, was in an extremely serious condition, and' Dr. Minty, who' at the time and for 15 years prior thereto had been a member of the board of trustees of defendant institution, was in attendance upon his child, and as
Dr. Minty’s affidavit set forth substantially the same statements as to the conversation Semans had with him, and he says that he assumed that the notice ¡Semans referred to was doubtless only a demand or claim for damages; that he had heard rumors that .Fellows was going to make a claim for damages on account of the death of plaintiff’s child under the treatment given it at the hospital ; and that he knew that an action could only be commenced ¡by the service of a summons on some of the officers of defendant, and supposed there, would be plenty of time to answer after the service of a summons. He also corroborated Semans’ affidavit as ■to the illness of Semans’ child, and stated that as soon as he heard that judgment had been taken and execution issued, he at once communicated with the attorneys Williams & Sweet, with the object of getting the judgment vacated and leave to answer. He stated that if the judgment is not vacated and permission granted to de
Homer W. Minish, a member of the board of trustees, m-ade an affidavit quite similar to that of -Dr. Minty, stating further that so far as he knew, none o-f the members of the board of trustees ha-d any knowledge that a summons had been served-, except 'C. J. Semans, and that if he -had had any notice or knowledge that an action had been commenced, he would: have immediately retained counsel and taken steps to interpose a defense.
No opposing affidavits were submitted.
While this court has frequently announced the view that trial courts have a wide discretion in granting or refusing motions to relieve from judgments by default, it has also taken the position that the power to relieve from such a judgment is to be exercised liberally in furtherance of justice. Griswold Linseed Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761; W. B. Foshay Co. v. Springfield Light & Power Co., 49 S. D. 92, 206 N. W. 239. In the last-cited -case, while the- discretion of the trial court had- been exercised in granting relief from the default, the application did not disclose a more meritorious showing than the application in the case at bar. There it was held that an attorney’s oversight to answer, due to- the fact that the summons was left with him the night before the convening of the regular term of court in Charles Mix’county, at which he had important litigation which diverted his attention, was sufficient ground- for setting
It is our opinion, on the whole showing, that the circuit court ought to have granted the motion to set aside the default, and allowed defendant to answer, and the order appealed from is reversed.