141 N.W. 988 | S.D. | 1913
Appellant relies upon section 151 of the Code of Civil Procedure, which reads as follows: “Sec. ' 151. The court may * * * in its discretion, and upon such terms as may be just, * * * at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. * * *” It is conceded by appellant that an application of this kind is addressed to the discretionary power of the circuit court, but he insists that in this case there was a clear abuse of such discretion. From appellant’s showing, it appears that this cause was, upon the call of the calendar at the June, 1911, term, set for trial at or near the foot of the calendar; that there was a large number of cases set for trial prior thereto; that the president of plaintiff corporation was within Spink county a few days prior to June 16th, and was advised, by an attorney employed by him in another cause, that this cause now on appeal could not possibly be reached until the first of the coming week, owing to the numerous cases preceding the same for trial; that thereupon said president of plaintiff corporation left the county of Spink, going west of the Missouri river, where he was then living and engaged in business; that he expected to return to attend as witness upon said trial upon 'being notified of the time for such return; that unexpectedly a large number of jury cases were disposed of without trial; that thereupon the attorney who had advised him that he might safely leave for his home for a few days wired him on June 15th that this cause was called for trial the next day; that he immediately started for Redfield, the city where said court was being held; that ordinarily it would have taken him until the evening of the 17th to reach there, and that he wired the above attorney to the’effect that he would be there on the evening of the 17th; that he did arrive on the morning of the 17th. In addition to this showing, it appeared to the court from the affidavits filed in resistance to appellant’s application, and also from the files and records in this cause, that the said cause was commenced in October, 1906; that an action involving the same cause of action was brought in the district court- of Minnesota in May, 1906, and judgment rendered thereon in November, 1906, in favor
It is insisted by appellant that 'his application should have been determined solely upon the showing as to'the reasons why plaintiff’s president failed to be present for the trial, and that all matters relating to the prior history of said cause could not rightfully be considered by the trial court. With this contention we are unable to agree. The question before the trial court was whether there was excusable neglect. It was an appeal to the discretion of said court. Facts that might be excusable neglect if standing alone might not be excusable neglect when considered in connection with the entire history of a cause. Each application
The order appealed from is affirmed.