13 S.D. 648 | S.D. | 1900
This is an appeal from an order vacating and setting aside a judgment so far as it affects the petitioner, and permitting him to intervene in the action. It appears from the affidavit, proposed complaint in intervention, and records upon which the >rder was made, that in 1891 the plaintiff Judd conveyed to defendant, Patton, a one-third interest in certain mining property, designated as the “Spokane Tin-Mining Property,” and that in consideration thereof said Patton entered into an agreement by the terms of which he agreed to pay the said Judd the sum of $1,000 upon the sale of the said interest by him, if said sale should be made within three years from the date of the agreement, but, if said sale should not be made within said period, then said joayment should be made at the end of the three years, and that said sum should constitute a lien upon the said interest of said Patton in said property. Some time prior to November, 1894, said Judd conveyed a three-fourths interest in said contract to his co-plaintiff, Horace Hickman, and on the latter-named date said Judd and Hickman commenced an action against the defendant to recover the said sum of $1,000, as agreed to be paid by said Patton. In July, 1895, while said action was still pending, the said Judd conveyed the other one-fourth interest to the petitioner, but no change was made in the parties to the action. In the fall of 1895 the case was referred to a referee, who filed his report in February, 1898, upon which judgment was entered dismissing the action. In July, 1899, the petitioner procured an order requiring said Patton to show cause why the judgment in the action should not be vacated and set aside, and he be allowed to intervene in the action. The court upon the hearing granted the order, and it is from this order the defendant has appealed.
William Nevin, in his'affidavit, after stating that he was a brother of the petitioner, and that he personally transacted the negotiations and business connected with the assignment to the said Nevin by the plaintiff Judd of a one-fourth interest in the claim in controversy, says: ‘‘That, at the time of the said transfer, affiant nor the said Nathan .Nevin knew of the bringing of any suit upon obligation of the defendant to the plaintiff, but the said transfer was tona fide and for a good and valuable consideration, and that the same was reduced to writing, and such assignment filed for record in the office of the register of deeds of Custer county * * * on the 3d day of July, 1895. That affiant at that time had no knowledge of the suit, or any suit with reference to the matters here in controversy. That not until a long time thereafter did affiant know of any proceeding or action with reference thereto, but at a time long after such assignment affiant was informed that H. E. Hickman had brought á suit to foreclose his .interest in said lien,
It will be observed that Nevin admits that he knew that said Hickman had a suit pending for a three-fourths interest in this claim, but it seems he failed to make any inquiry of Hickman or of his attorneys as to what proceedings were being taken in the same, and that he has had no conversation with Hickman or with said Judd, or with any of the attorneys, since the trial; and he gives no reason why the affidavits of Judd, Hickman, or either of their attorneys, are not presented on this hearing. It will be further observed that he fails to fix any time when he learned of the pendency of the suit, or of the judgment obtained therein. It will be also observed that
It is claimed on the part of .the appellant, and virtually conceded by the respondent, that the petitioner having purchas