146 N.W. 564 | S.D. | 1914
The remedy by motion is available only in case of irregular and void judgments (irregular and void by reason of the want of jurisdiction or want of adherence to- some essential legal procedure), and cannot be resorted to as a means of enabling the court to review, revise,- or correct errors of law into which it may have fallen. That a judgment is erroneous as a matter of law is ground for appeal; but it is no ground for setting aside the judgment on motion. A motion to set aside -a judgment cannot be made to perform -the office of an appeal. Black on Judgments, §329; State v. Donovan, 10 N. D. 203, 86 N. W. 709; Proudzinski v. Garbutt, 9 N. D. 239, 83 N. W. 23; Garr, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Schaettler v. Gardiner, 47 N. Y. 404; Kamp v. Kamp, 59 N. Y. 212; Hartshorn v. C., M. & St. P. Ry.,
The order appealed from is reversed, and plaintiff given 30 days from the filing of the remittitur in which to serve an amended complaint, if he so desires.