Credit Management Service, Inc. v. Wendbourne

• Decision Date: 14 November 1955
• Docket Number: No. 9545,9545
• Parties: CREDIT MANAGEMENT SERVICE, Inc., Plaintiff and Respondent, v. George Dewey WENDBOURNE, Defendant, and Joe's Laundry, Garnishee Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 926

72 N.W.2d 926

76 S.D. 80

CREDIT MANAGEMENT SERVICE, Inc., Plaintiff and Respondent, v. George Dewey WENDBOURNE, Defendant, and Joe's Laundry, Garnishee Defendant and Appellant.

No. 9545.

Supreme Court of South Dakota.

Nov. 14, 1955.

John Carl Mundt, Sioux Falls, for appellant.

Gene E. Pruitt, Sioux Falls, for respondent.

RUDOLPH, Presiding Judge.

This is an appeal from an order of the Municipal Court of Sioux Falls refusing to permit the garnishee defendant to serve and file an affidavit denying liability, after the statutory time for serving and filing such affidavit had expired. The garnishee defendant has appealed.

Respondent has moved to dismiss the appeal for the reason that the order appealed from is an intermediate order and appellant did not petition for an allowance of the appeal under SDC 33.0704. We have concluded that if this order does not fall strictly within the language of SDC 33.0701(5), nevertheless the appeal should be allowed under the rule announced in Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 10 N.W.2d 879.

The affidavits relating to the facts are in sharp conflict. The entire matter having been presented below upon affidavits it is the duty of this court to review the evidence unhampered by the rule that a trial judge who has observed the demeanor of the witnesses, is in a better position to intelligently weigh the evidence than the appellate court. Fairmont & Veblen R. Co. v. Bethke, 37 S.D. 446, 159 N.W. 56; Smith v. Hart, 49 S.D. 582, 207 N.W. 657, 46 A.L.R. 811; Royal Union Life Ins. Co. v. Boynton, 54 S.D. 85, 222 N.W. 596; Fulwider v. Benda, 62 S.D. 400, 253 N.W. 154, 92 A.L.R. 961.

We have considered the affidavits of the parties and all affidavits submitted in support of and in opposition to the motion. The facts as we have determined them are as follows: The garnishee defendant, who we will hereinafter refer to as the defendant, was served with the garnishee summons on February 25, 1955. He had ten days thereafter to answer and make disclosure. SDC 33.2803. He did nothing until this application was made on April 20, 1955, almost two months after the service. He had previously been served with a garnishee summons and by calling the plaintiff in that action the matter was adjusted. Defendant states that when he was served with the garnishee summons he advised the process server that he owed the principal defendant nothing and was then told, 'Forget about it and pay no more attention to it.' The man who served the summons denied making any such statement, but accepting defendant's version of the incident it loses its force because of the telephone conversations which we have determined he had with the attorney for plaintiff. The first of these conversations was on April 1, at which time defendant was advised he was in default, but that he should make a disclosure and have his liability determined. A few days later the attorney again called defendant and advised him to make a written disclosure so the matter could be determined. Defendant did nothing until after plaintiff commenced enforcing the liability defendant had incurred by the default, which was more than ten days after the telephone conversations above referred to.

The question presented is whether the trial court abused the discretion with which it is vested under the provisions of SDC 33.2802 and SDC 33.0108. We must start with the premise that the statute, SDC 33.0108, is remedial and should be liberally applied to the end that justice be done. McConnell v. Margulies, 39 S.D. 563, 165 N.W. 990; ...