178 N.W. 141 | S.D. | 1920
“There are a few courts, prominent among which is the North Carolina court, which have at times refused to impute mere negligence of the attorney to his client. We think, however, no case can be found where a court has so ruled, except where the client has been shown to have been free of negligence; and the burden is certainly upon the party seeking relief from the results of his attorney’s negligence to show that he himself has not been negligent. * * * It foljows, therefore, that defendant has not made such a showing as to justify this court in refusing to hold it liable for the negligence of its counsel.”
Appellant is in error in its contention that the additional affidavits presented upon its second application disclose new matter within the rule. None of such facts arose subsequently to the first motion, and all of them were within the knowledge of appellant. and its counsel prior to and at the time the first motion was presented. Manifestly the appellant could not present a second motion to open the default as a matter of right.
“We think that, where an issue of fact is distinctly and formally presented to the court for detetrminátion as a means of fixing the legal rights of the parties, the supporting evidence of both sides duly considered, and from which determination either party may appeal, the decision of the court -upon such issue ought to be held conclusive and final, without regard to the form in which such issue is presented — whether by action or motion; the important matter being that the issue be Well defined, so as to preclude doubt as to what question was before the court, that it be fully heard and litigated, each side having an opporT tunity to be heard, and that the court should judicially pass upon*96 and decide it (citing Wilson County v. McIntosh, 30 Kan. 234, 1 Pac. 572.) * * * We regard this question of service as conclusively settled by the decision of the first motion, and the second motion, which is the subject of this appeal, must be considered and disposed of upon that theory. The second motion was an application addressed to the discretion of the court, that the said judgment as to defendant Wipf, and all subsequent proceedings, be vacated, and he let in to defend, under the provisions of section 4939, 'Compiled Laws.”
“The rule now generally accepted is that if a motion involves a substantial right, and a full hearing is accorded thereon, and the order made on such motion is appealable, such order is a final adjudication of all matters involved in the motion” — citing numerous cases.
We are of the view' that the first motion in this case did not involve any question of fact material to the cause of action or defense, but merely a question of practice appealing to the discretion of the trial court, and that the decision upon that motion was not res judicata of matters tending to excuse the default, and that such matters might be again considered upon a second motion upon leave granted by the trial court, subject, however, to the limitation hereinafter noted. Nearly 30 years ago, this court following the New York authorities, ruled* that:
‘A motion once heard and decided by a court cannot be renewed in the same court without leave of the court.” Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128.
The second motion in this case was heard upon an order to show cause made by the trial court, and appellant now contends that the granting of that order is in itself permission to present the second motion — citing Clopton v. Clopton, 10 N. D. 569,
“When such a motion is renewed at the same term, before the same judge, and entertained by -him, it is regarded as having been made upon his implied leave.”
We are of the view that by granting the order to show cause the trial court in this case consented to entertain the second application.
It follows that the trial court was within the rightful exercise of the discretion in it vested when it granted the order to show cause and thereby consented to entertain the second application, but that it erred when it failed to pass upon the merits of the application, and the order is reversed, with directions to the trial court to hear the motion upon such grounds, as though leave had been granted.