227 N.W. 369 | S.D. | 1929
Lead Opinion
The question is whether appellant’s motion to vacate a default judgment against him, and for leave to answer, should have been granted. Appellant calls attention to the language of this court in Griswold Linseed Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761, which concerns Revised Code, § 237S, as follows: “The provisions of section 4939, Comp. Laws (now § 2378, R. C.), conferring upon courts the power to ‘relieve a party from a judgment * * * taken against him through his mistake,' inadvertence, surprise, or excusable neglect,’ are liberal.in their terms, remedial in their character, and were designed to afford parties a simple, speedy, and efficient relief in a most worthy class of cases, and this power should be exercised -by courts in the same liberal spirit in which they were designed, in furtherance of justice, and in order that cases may be tried and disposed of upon their merits.”
There is, however, a .-difference 'between a liberal exercise of the jurisdiction above mentioned, where facts are shown to invoke that jurisdiction, and the liberal exercise of credulity in determining
Granting that appellant’s proposed answer contains the allegation of good defenses to the complaint, we have here a defaulting defendant whose only claim to the existence of “mistake, inadvertence, surprise, or excusable neglect,” within the meaning of section 2378, supra, is that when served with summons and complaint on April 2, 1927, he did not understand the import of the same, that he was financially unable to employ counsel, and that he believed he need not consult counsel until he received notice that the case would be called for trial at a term of court which, he understood, would occur in the following September.
For the purpose of decision we need not question that, if the foregoing claim of appellant were fairly established as a fact to the satisfaction of the court, the relief prayed for should be granted. We shall, therefore, consider whether, the foregoing statement in the affidavit of appellant is reasonably borne out or supported by those elements of additional showing which are uncontradicted.
Appellant took no steps to be relieved from default until after supplementary proceedings were commenced on the default judgment, and he claims to have not learned of the judgment until February 1, 1928, about 10 months after service of summons and
If the answer in the last-mentioned case was timely interposed, as it may be inferred, the appellant is thus shown to have consulted counsel and to have made appearance by answer in a matter similar to the instant case before the time when he should have answered to avoid the default now in question. Having, in the other case employed counsel “to look after his case,” and having, in that matter, signed some papers prepared1 by his attorney, it stands irrefutable that there was knowledg'e in his mind of some reason, obvious or occult, for doing those things which, in the other action, he did. That knowledge, established by appellant’s statements in this record, cannot be reconciled with his present claim of such ignorance in the premises that he did not understand the summons and complaint, and did not know he should consult counsel or take any steps to avoid default judgment. If he was unable to understand the import of the summons and complaint, as he states— .papers handed him by a sheriff — there was reason enough to lead any intelligent mind to inquire and ascertain the import of those papers.
Appellant does not claim to lack intelligence. He claims to have had a “meagre education in the English language so that he is unable to read court .papers understanding^.” However, his
In respect of one of appellant’s proposed defenses to three of the four notes pleaded in the complaint, his statement is to. the effect that the notes, being signed' by his codefendant Herbert Erickson and made payable to appellant, were traded by appellant to the plaintiff on account of the purchase price of a house and lot in-Salem,; that, for the balance of the purchase price, appellant gave plaintiff, a ’mortgage on the property; that after the mortgage note became due' and appellant was unable to pay, he offered to reconvey the premises 'to plaintiff; that plaintiff preferred to foreclose in order to cut off some old personal jproperty taxes against appellant, and agreed that, if appellant would vacate the premises after sheriff’s sale and during the period of redemption, plaintiff would make no further claim against appellant for any part of the pur
A line must somewhere be'drawn. Some measure of stability must be recognized in judgments by default regularly entered after personal service of process. Decisions of this court allowing relief from default judgments are as liberal in terms, to those seeking the relief, as the reported decisions of any court. But we find no decision of this or any other court according- to which the relief has been allowed on the discredited statement of the defaulting defendant that, simply, he did not know the import of the summons and complaint and did not know he should consult or employ counsel until he was served with a further and additional notice of trial.
Appellant was not liable on one of the four notes pleaded in the complaint, as shown by the allegations of the complaint. The other notes he had indorsed. The judgment as entered against defendant was for the full amount of all four notes. But this mistake was corrected below by the trial court by amendment of the default judgment. Of the original error or its correction appellant may now complain. The case stands here as his application for relief from judgment entered on three of the notes, and, for reasons stated, we think the trial court’s denial of appellant’s motion was proper.
The order appealed from is affirmed.
Concurrence Opinion
(concurring- specially). I concur in the result on the ground that the record fails to show any abuse of discretion on the part of the trial court, even assuming the entire truth of appellant’s present contentions as to the facts existing at the time he was served with process.