Badger Northland, Inc. v. Van Der Boom

• Decision Date: 05 December 1975
• Docket Number: No. 11526,11526
• Citation: 235 N.W.2d 903,89 S.D. 553
• Parties: BADGER NORTHLAND, INC., a Corporation, Plaintiff and Respondent, v. Virgil M. VAN DER BOOM, Defendant, and Mildred D. Van Der Boom, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 903

235 N.W.2d 903

89 S.D. 553

BADGER NORTHLAND, INC., a Corporation, Plaintiff and Respondent, v. Virgil M. VAN DER BOOM, Defendant and Mildred D. Van Der Boom, Defendant and Appellant.

No. 11526.

Supreme Court of South Dakota.

Argued Sept. 15, 1975.

Decided Dec. 5, 1975.

William E. Anderson, Belle Fourche, for plaintiff and respondent.

Grotenhouse & Johnson, Spearfish, for defendant and appellant.

DUNN, Chief Justice.

This appeal is from an order of the circuit court refusing to set aside a judgment against appellant Mildred Van Der Boom which was entered nunc pro tunc and dated June 13, 1972. For some ten years prior to the litigation, appellant's husband, Virgil Van Der Boom, had been buying silage equipment wholesale from plaintiff and selling it retail to customers in and around Newell, South Dakota. Virgil bought the equipment on open account. By 1965 the past due account exceeded $25,000. Plaintiff became insecure and sent its comptroller out to Newell to see if he could get some security for the past due account. He was able to procure from Virgil a promissory note for $26,358.48 and a second mortgage on 280 acres of land. Plaintiff's comptroller assumed that Virgil was the sole owner of the property, but in reality the land was owned by Virgil and appellant as joint tenants with right of survivorship. When plaintiff became aware of this it sought to have both Virgil and defendant sign a promissory note and mortgage. This they refused to do.

On July 28, 1967, plaintiff commenced suit against both Virgil and appellant. Plaintiff alleged fraud on the part of appellant and sought (1) to have the promissory note and mortgage reformed to include appellant's name, (2) a judgment against the defendants in the amount of $26,358.48, and (3) foreclosure of the mortgage on the property. Trial of the case was commenced in the circuit court on May 12, 1970. At the trial plaintiff put in some of its evidence; however, for some reason not revealed by the record, the trial was recessed and no further testimony was taken. Finally, on September 5, 1972, the parties by their attorneys entered into a stipulation assessing certain costs against defendants, giving plaintiff judgment in the amount of $21,000, allowing certain evidence to be introduced without foundation, waiving defendants' right to notice on plaintiff's motion for judgment, and waiving findings of fact and conclusions of law. On September 8, 1972, plaintiff moved for judgment and judgment was entered nunc pro tunc giving plaintiff judgment against both appellant and Virgil and ordering that the mortgage be foreclosed and the land sold if the judgment was not satisfied by a specified date. Appellant then retained new counsel, and on October 27, 1972, moved that the judgment against her be set aside. This motion was denied by the court on June 4, 1974, and this appeal followed.

We state here that effective appellate review is only possible when the trial court and the attorneys conduct all proceedings on the record. Neither counsel made any attempted to present the full story on the record. There are indications of and reference to many conversations and agreements which do not appear in the transcript. The record is scanty and contains gaps which are inexcusable. We can only deal with what is before the court on this appeal. With this in mind, we consider appellant's argument that the judgment was entered against her through inadvertence and excusable neglect of counsel.

The judgment in this case came about as a result of the written stipulation entered into by the attorneys for the parties. It is clear that after the trial was recessed the attorney for plaintiff made numerous attempts to get the trial resumed. Each time, appellant's attorney would manage to secure a delay.

The general rule in cases of this type is that a judgment based upon the stipulation of the parties cannot be reviewed by an appellate court. As is stated in Annot. 69 A.L.R.2d at 764, '* * * the authorities are nearly unanimous in holding that, subject to limitations to be discussed hereafter, a consent judgment is not subject to appellate review.' We have adopted and followed this rule is South Dakota. See Coolsaet v. City of Veblen, 1929, 55 S.D. 485, 226 N.W. 726; Western Material Company v. Grant County, 1933, 61 S.D. 308, 248 N.W. 493. At first blush, then, it would seem that a summary affirmance or dismissal of the appeal would be in order.

However, there are several exceptions to the above quoted rule. We feel that one is appropriate here. 'Even though a judgment purports to be a consent judgment, the question whether the judgment, in its terms, deviates from the terms of the agreement or stipulation of the parties is open for review on appeal.' Annot. 69 A.L.R.2d at 795. See also Bryan v. Reynolds, 1956, 143 Conn. 456, 123 A.2d 192, and Strode v. Miller, 1900, 7 Idaho 16, 59 P. 893. After closely considering both, we find that the judgment of the circuit court in this case deviates substantially from the written stipulation of the parties. Here the problem with the sparse...