Plano Mfg. Co. v. Murphy

16 S.D. 380 | S.D. | 1902

Corson, J.

This is an appeal from an order made by the circuit court of Brown county denying defendant’s motion to vacate and set aside a judgment and for leave to answer. The motion seems to have been made upon the following grounds: First, that-the summons in the action was not properly served upon the defendant, as the same was not served by an officer or by a person not a party to the action; second, that judgment was taken against the defendant through his mistake, inadvertence, surprise, or excusable neglect; third, that no proper judgment was entered under the complaint in the action; and, fourth, that the complaint was not properly verified. The action was commenced in the circuit court of Brown county, and the summons was served on the defendant in Coding-ton county by the collecting agent of the plaintiff. Section 4899, Comp. Laws, provides: “The summons may be served by the sheriff of the county where the defendant may be found or by any other person not a party to the action.” The word “party” was evidently used in this section by the lawmaking power in its technical sense, and a person, therefore, not strictly a party to the record, is competent to serve a summons in a civil action., The fact that E. F. McCoy was the collecting agent of the plaintiff did not disqualify him, and a service made by him therefore was a legal service. Bank v. Estenson, 68 Minn. 28, 70 N. W. 775; Loucks v. Hollenbeck (Sup.) 63 N. Y. Supp. 1. It appears from the affidavits that E. F. McCoy, as the agent of the plaintiff, had a conversation with the defendant regarding the payment of certain notes guaranteed by him and the other members of the firm, and that, not being able to effect a settlement, McCoy then served or attempted to serve the defendant with a summons in this action. It is not necessary to set out the affidavits of the various parties in detail, it being.sufficient to state that the said E. F. McCoy handed to the defendant a copy of the summons-, which the defendant refused to receive, and the same was left by him lying upon the table of the Kampeska House at Watertown. The only reason given by the defendant in his affidayit for not receiving the summons was that he entertained the opinion that no one but an officer could serve a summons in an action. The' defendant does not claim that any fraud was practiced upon him, and no mistake, inadvertence, surprise, - or excusable neglect, such as the law contemplates, is shown. The only mistake for which relief will be granted is a mistake of fact. 6 Enc. Pl. & Prac. 167 Shearman v. Jorgensen, 106 Cal. 484, 39 Pac. 863; City of New York v. Green, 1 Hilt. 393; Skinner v. Terry, 107 N. C. 103, 12 S. E. 118. The opinion entertained by the defendant that no one but an officer could serve a summons upon him in a civil action was a mistake of law, and not of fact. The case of Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761, relied upon by appellant, does not sustain his contention. There are some facts in that case stated by the defendant Lee in his affidavit showing mistake • and excusable neglect, which served to call into exercise the discretionary power of the trial court. But m the case at bar we fail to discover any mistake, inadvertence, surprise, or excusable neglect. We ai;e of the opinion, therefore, that the trial court committed no error in denying the defendant’s motion. The other points made have not been overlooked, but, in our view, they are without merit.

The order of the circuit court is affirmed.