12 S.D. 355 | S.D. | 1900
In December, 1884, judgment by default was entered in an action in Moody county entitled ‘‘Whitfield, Powers & Co. v. Charles K. Howard,” in. favor of plaintiffs and against defendant, for the sum of $1,310.39. No execution was issued until May, 1898, when a motion was made by respondents to the circuit'court for leave to’issue execution thereon, which motion was granted. In July, 1898, defendant herein made a motion to vacate and set aside this judgment on the ground that no summons in the action was ever served upon him. This motion was denied, and from the order denying the same an appeal was taken to this court.
At the time this motion to vacate and set aside the judgment was made, the judgment roll on file in the office of the clerk of the circuit court of Moody county, and the official records of that county disclosed the following facts: That no entry of this case had ever been made in the register of actions by the clerk of the territorial district court, the predecessor of the present circuit court. That the judgment roll contained only the following papers to-wit: A note purporting to be signed by-one Charles K. Howard; an affidavit by a member of the plaintiffs’ firm of the nonpayment of the same; and a copy of a judgment by default, in the usual printed form, signed by the Honorable C. S. Palmer, judge, and dated December 26, 1884,. which judgment was duly entered on the judgment book. There was no summons, no proof of service of the same, no complaint, no attorney’s affidavit of default, and no record of the issuance or existence of any process, except the recital in the judgment entered in the judgment book, which reads as follows: “The summons in this action having been duly and personally served upon the above-named defendant, and no copy of an answer or demurrer to the complaint in this action
Before proceeding to discuss this case upon the merits, there is a preliminary question to be disposed of. It is contended by the attorney for respondents that the questions presented by this record were m effect determined by an order of the circuit court granting plaintiffs’ motion for leave to issue execution on the original judgment. Possibly there might be some force in this contention if the record in that proceeding had been introduced in evidence on the hearing of the motion to vacate and set aside the. judgment. While the motion for leave to issue execution, and the order granting the same, are
Appellant contends that the records and evidence in the case fail to prove service of process upon him, and that, the circuit court was therefore without jurisdiction, the judgment rendered by it was void, and that it should be vacated and set aside. Appellant further claims that, the judgment in controversy being a judgment by default, whatever may affect its competency or regularity, from the summons and proof of service thereof down .to the judgment itself, inclusive, is part' of the record, and is open to examination. It is further insisted on the part of the appellant that such a judgment differs essentially in this respect from one in which there is an appearance and contest. Appellant further contends that inasmuch as there is no summons no certificate or affidavit of service of a summons, no complaint, no affidavit of default, no proof of the service of a summons, and no entry of any kind in the register of actions by the clerk, as required by section 5344, Comp. Laws, — in fact, no proof of service, no judgment roll at. all,— the judgment is absolutely void, notwithstanding the recital in