19 S.D. 128 | S.D. | 1905
This case was before us at a former term
■of this court upon a motion to dismiss the appeal. • The decision in that case is reported in 17 S. D. 590, 98 N.W. 86. The case is now before hs for a review of the first order upon its -merits.
= Prior to February 6, 1908, the defendant, being indebtéd to the plaintiff in the sum of about’‡7,000, - executed to the plaintiff five promissory notes, and on the latter day, to secure the same, executed to the plaintiff a chattel mortgage upon his stock of goods, wares, and merchandise in his store in Sturgis, ■S D. The plaintiff subsequently, in February, deeming itself insecure, took possession of said stock of goods, and on the 9th day of March commenced an action to foreclose said chat-1 el mortgage; serving a copy of the summons and complaint upon the defendant personally. On April 13th, no answer having been served or filed, a judgment by defaultwas entered. Subsequently to the commencement of the action to foreclose the chattel mortgage, and before the time for answering had
The defendant, in support of his motion to vacate and set aside the judgment, and £or leave to file and serve an answer, relied mainly upon the affidavit made by his attorney, and upon the proposed answer served with the notice of the motion. In this affidavit the attorney for the defendant set out various statements alleged to have been made to him by the attorneys for the plaintiff, which he claims misled him, and by reason thereof he failed to file answer within time. It will not be necessary, in the view we take of the case, to set out this affidavit in this opinion, as the material statements therein consist of alleged conversations between the attorney for the defendant and the attorneys for the plaintiff, and were, in the
- While this court, by its - decisions, has sought to impress upon the trial courts the duty of giving a liberal construction to the provisions of the Code conferring upon them the power to'vacate and set aside judgments, and allow parties to make their defenses upon the merits, where, by mistake, inadvertence, surprise, or excusable neglect, they have omitted to file their pleadings within time (Griswold Linseed Oil Co. v. Lee, 1 S. D. 531; 47 N. W. 955, 36 Am. St. Rep. 761; Farrar v. Con
These views lead to an affirmance of the order of the circuit court denying defendant’s motion, appealed from, and the same is affirmed.