Erpenbach v. Chicago

• Decision Date: 26 May 1896
• Citation: 67 N.W. 606,8 S.D. 575
• Court: South Dakota Supreme Court
• Parties: ERPENBACH, Plaintiff and respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. Defendant and appellant.

8 S.D. 575

67 N.W. 606

M. & St. P. Ry. Co.,(1896)

ERPENBACH, Plaintiff and respondent,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hutchinson County, SD Hon. E. G. Smith, Judge Reversed Hooper & Johnson Attorneys for appellant. R. B. Tripp Attorneys for respondent. Opinion filed May 26, 1896

CORSON, P. J.

This is an appeal by the plaintiff from an order of the circuit court vacating and setting aside an order of a justic’s court, In an action brought by plaintiff in a justice court, a judgment by default was entered in favor of the plaintiff, On motion of defendant, and for cause shown, an order was made that the default judgment be vacated, and the defendant given leave to answer upon the payment of costs. The costs were taxed at $12.35, including $5 attorney’s fee. The defendant offered to pay $7.35, but declined to pay the $5 attorney’s fee. The justice court thereupon made a second order denying the defendant’s motion to open the default, and the defendant served and flled with the justice a notice of appeal to the circuit court, but gave no undertaking on appeal. Upon the notice of appeal was indorsed, however, the following stipulation: “Due service admitted, and undertaking for costs and stay is hereby waived.” Signed by plaintiff’s attorneys. On the trial in the circuit court that court made the order from which this appeal is taken, which is as follows:

“This action having been regularly brought on to be heard upon defendant’s notice of trial of the issues of law involved herein, Hooper & Johnson appearing for the plaintiff and R. B. Tripp for the defendant, and it appearing to the court that the justice from whose court this appeal is taken ought to have relieved the defendant from the default judgment on the payment of the costs it offered to pay, it is adjudged that the order of the justice of June 21, 1895, refusing to relieve the defendant, be, and the same hereby is, vacated and set aside, with costs in favor of the defendant and against said plaintiff taxed at dollars.

It is further ordered and adjudged that, upon the payment of said costs, the case be transmitted to the court from which this appeal is taken.”

Appellant asserts in his abstract that a motion was made by the plaintiff and respondent on the appeal to the circuit court to dismiss the appeal, for the reason that no undertaking was filed, This is denied by the appellant in this appeal by an additional abstract, but, as we do not deem it necessary to decide the question of the regularity of the appeal taken to the circuit court, we shall not attempt to settle the disputed facts presented by the two abstracts. We shall assume, for the purposes of this decision, that the circuit court had jurisdiction. The question that we shall consider is, could the justice impose as a condition for vacating the judgment by default, and permitting the defendant to answer, the payment of all costs, and include therein an attorney fee of $5, allowed by the statute? The last clause of Sec. 6065, Comp. Laws, provides:

“The court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default, taken against him by his mistake, inadvertence, surprise or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor.”

It will be observed that a judgment by default can only be vacated upon payment of...