Sioux Specialty Co. v. Coyle

162 N.W. 748 | S.D. | 1917

McOO'Y, J.

On the 10th day of August, 1916, default judgment in this action was entered in the county .court. Upon the record, files, and affidavits, a motion was made -by defendant to open and vacate- said default and to -permit defendant to interpose an answer, which motion was made returnable on- the 13-th of October, 1916, .and at which time plaintiff appeared and by counter affidavits opposed said motion, and, after hearing the respective parties, said motion (to open said default was- 'denied. On the 17th day of October, 1916, defendant served notice of another motion to open said default based on the record, files, and additional affidavits therewith served, and which last motion was returnable on the 25th day of October, 1916. On the hearing of this last motion, plaintiff appeared in opposition thereto, and at said' time defendant [on motion was permitted to file a further supplemental affidavit. It appeared from the showing made by defendant that, when the summons was' served upon him by a ■private individual, 'he was not informed1 and had no knowledge that the-paper then handed him was a summons in this action;, that the said summons was not writt-en or printed on white paper, but was in the form of a circular on colored paper, and1 that he was thereby misled; -that the first information he had that he had been sued in this action was .when the sheriff appeared with an execution based on the said judgment on the 2d day of October, 1916. There was a sufficient affidavit of merits and a proposed answer alleging payment on file at the time of the hearing of the last motion, although the affidavit of merits was not. served with the motion, but was made to appear by die additional or supplemental affidavit filed at -the time of the hearing. The motion to open the default was granted, and from- which ruling the plaintiff has appealed, assigning that the showing made was not sufficient.

[1,2] W¡e are of the view that the trial court did not abuse its discretion in permitting the filing of this supplemental affidavit, and that the trial court did not abuse its discretion in granting the motion to open and vacate said default and permit defendant to interpose an answer upon the merits'. The trial court possesses large discretion in such matters where -defendant acts promptly in seeking to open such default. Griswold Linseed Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761. It will serve no useful purpose to further detail the record.

The order appealed from is -affirmed.