Henderson v. Egan, 179 N.W. 31

Henderson v. Egan

179 N.W. 31 | S.D. | 1920

McCOY, P. J.

Summons and complaint were served on defendant on February 10, 1920. On March 8th, before the expiration of the time to answer, defendant interposed a demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action. On March 15th plaintiff served and filed an amended complaint. Defendant moved to strike the amended complaint from the files. This motion was overruled, and defendant, by order, was required to answer or demur to said amended complaint on or before April 24, 1920. No answer or demurrer having been served or filed within said time, *369judgment 'by default was rendered against defendant on April 26, 1920, from which judgment defendant appeals.

[1] Appellant assigns that the court erred in overruling the said motion to strike from the files the said amended complaint. It was the contention of appellant that respondent had not the right on March 15th to serve an amended complaint as of course, without first having obtained leave of the court. This contention is not tenable, as under the provisions of section 2376, Code 1919, a party has the right, as of course, and without leave of the court, to serve an amended pleading within 20 days after service of answer or demurrer to such pleading, unless it be made to appear to the court that such amendment was made for the purpose of delay. Nb such purpose has been shown.

If a defendant moved to strike an amended complaint on the ground that it 'was made for the purpose of delay, the burden would be on defendant to show that such amendment was made for the purpose of delay; otherwise, the presumption would be that the purpose was lawful. The motion to strike the amended complaint in this action was not 'based on the ground that such amendment was made for the purposes of delay, but was made only on the ground that such amendment was made without leave of the court.

[2] Appellant also .contends that the amended complaint does not state facts sufficient to constitute a cause of action. This contention is not sound. The complaint states a cause of action for the payment of money only.

[3] Appellant also contends that he was not in default at the time said judgment was rendered, for the reason that at the time the amended complaint was served the demurrer to the original complaint was pending and undetermined. We are of the view that the service of the amended complaint superseded the original complaint, and amounted to and was an abandonment thereof by respondent.

[4] Appellant also contends that the default judgment was irregularly taken, in that he was entitled to six days’ notice thereof under section 2485, Code 1919. We are of the opinion that this contention is not tenable. The amended complaint was verified, and the action was for .the payment of money only. In such an action, in Searles v. Lawrence, 8 S. D. 11, 65 N. W. 34, *370where defendant had appeared, but had not answered or demurred, it was held, that defendant was not entitled to notice of assessment of damages or of the application for judgment.

The judgment appealed from is affirmed.

■SMITH and GATES, JJ., not sitting.