26 S.D. 239 | S.D. | 1910
This action was commenced on June 2, 1908, service of summons having been made by delivering to and leaving with defendant’s wife a copy thereof at defendant’s dwelling in Day county. On August 4th plaintiff’s counsel were served with an order to show cause why defendant’s default should not be set aside, and he be permitted to> answer, returnable August 29th, accompanied by a copy of a proposed verified answer and an affidavit of Frank Sears of the firm of Sears & Potter, stating: That affiant’s firm was retained by the defendant about June 30th to make application to have the service of summons set aside. That such application was made and denied about July 9th. “That, by reason of said application, no answer was served in said cause, and more than 30 days has elapsed since the service of the summons and complaint therein. That the said attorneys acted in good faith in making said application, and advised the defendant that no sufficient service of summons had been made on him to entitle the
Counsel for appellant concede that the defendant’s application for leave to answer was addressed to the sound discretion of the trial court, but they contend such discretion was abused (1) because the affidavits on which the application was based contained no facts tending to show inadvertence, surprise, or excusable mistake; (2) because it appears from such affidavits that an answer was not served in time through mistake of law and not of fact; (3) because no reasons are given therein why defendant’s motion to set aside the service of summons was not made in time to allow the service of an answer within the statutory period, thus showing bad faith and inexcusable neglect; (4) because a proper affidavit of merits was not served; and (5) because defendant’s proposed answer did not state facts constituting a defense and was frivolous.
It is alleged in the complaint that the plaintiff and the defendant entered into a written contract by the terms of which the plaintiff was to deliver certain described personal property and
Defendant’s default did not result from any mistake or negligence on his part. It appears from the uncontradicted affidavits upon which the order appealed from was based that after employing counsel the defendant went to Alberta, Canada, where he remained during the pendency of this action in the circuit court.' There is nothing in the record to justify the inference that his absence from this state was designed to prevent or delay the prosecution of the plaintiff’s claim. He employed counsel in ample time to have had an answer served. The attack upon the service of the summons was made on the advice and suggestion of counsel. It was their mistake, not his, which enabled the plaintiff to secure a judgment by default. They undoubtedly were authorized and relied on by the defendant to take such action as would properly protect his rights. If the service of the summons was defective,
No useful purpose would be served by an extended discussion of appellant’s numerous technical objections to the phraseology of the affidavit of merits. No departure from the usual form of such instruments is disclosed that would warrant a reversal of the order appealed from. An examination of the entire record clearly justifies these conclusions: That the defendant and his counsel acted in good faith; that there is a substantial controversy between the parties to this action; that the defendant should be given an opporunity to defend; and that it was not an abuse of discretion to set aside his default upon the conditions prescribed by the learned circuit court. Its order is affirmed.