8 S.D. 11 | S.D. | 1895
This was an action upon a promissory note. Judgment for plaintiff, and defendants appeal. The assignments of terror very clearly present the questions to be determined by the court, and are as follows: “(1) The court erred in making its order denying defendants’ motion for a change of the place of trial, for the reason that it is apparent from the
The defendants’ counsel, with their notice of said motions, served upon plaintiff’s counsel an affidavit excusing their delay in demanding a change of the place of trial, and their neglect to serve an answer within the time prescribed by the statute. This affidavit, so far as material to the decision of this case is as follows: “That, at the time of first sending said notice of retainer, defendants’ attorneys wrote the attorney for plaintiff, asking that he stipulate for a change of the place of trial, which request said attorney answered that he would consult his client and let defendants’ attorneys know, a copy of which said letter is hereto attached, marked ‘Exhibit A.’ That thereafter defendants’ attorneys received no letter from said plaintiff’s attorney, nor at any time, in any manner, heard from him, rela- ■ tive to the change of the place of trial, or as to whether bis client would consent thereto, until after the service upon defendants’ attorneys of the order to show cause why a copy of the complaint should not be substituted and judgment rendered in said action. That on the 14th day of January, 1893, defendants’ attorneys wrote plaintiff’s attorney the following letter: ‘F. L, Howland, Esq., Sioux Falls, S. D. — Dear Sir: In your letter of some time ago you promised to consult your client, and let us know, in regard to agreeing to a change of place of trial in case of Searles v. Lawrence et al. We have been waiting to hear from you before accepting service on your complaint. Please advise. ’ To which said letter said attorneys received n'o reply. Further, affiant says that said defendants have been for ten years last past, and are now, residents of Spink county, in said state; that defendants’ attorneys, knowing their right to demand a change of the place of trial, in good faith, believed
Section 4891, Comp. Laws, provides that, “if the county designated for that purpose in the complaint, be not the proper county the action may, notwithstanding, be tried therein unless
“Rule 14. No order allowing a party to plead after the time limited by the code or relieving a party from judgment by default shall be granted unless the party applying therefor shali have served on the adverse party with his notice of motion an affidavit of merits, with a copy of his proposed pleading.
‘‘Rule 15. In an affidavit of merits the affiant shall state that he has fully and fairly stated the case to his counsel, giving the name and place of residence of such counsel, and that the defendant has a good and substantial defense to the action on the merits, as he is advised by his counsel after such statement and verily believes.”
The defendants did not comply with either of these' rules. No proposed answer was served with the motion, nor any affidavit of merits, as prescribed by the rules. The court therefore committed_no error in denying the motion.
It is further contended by the appellants that the judgment is erroneous and should be reversed for the reason that, although they had appeared in the action by the service of notice of retainer, no notice was given them of the application for judgment and the 'assessment of damages. But as the action was one arising on contract for the recovery of money only, and the complaint was sworn to, no notice of the application for judgment was required. In such case judgment is entered by the court as of course, without an assessment of damages. That part of Sec. 5025, Comp. Laws, applicable to this case, reads as follows; “Judgment may be had if the