Fisk v. Hicks

• Citation: 137 N.W. 424,29 S.D. 399
• Parties: FISK et al. v. HICKS.
• Decision Date: 25 June 1912
• Court: South Dakota Supreme Court

137 N.W. 424

29 S.D. 399

FISK et al. v. HICKS.

Supreme Court of South Dakota

June 25, 1912

Appeal from Circuit Court, Potter County.

Action by Robert B. Fisk and another against Joseph Hicks. From an order setting aside a default judgment for plaintiffs with leave to answer, plaintiffs appeal. Affirmed.

Fisk & Sargent, for appellants.

SMITH J.

Appeal from an order setting aside a default judgment with leave to answer. On March 11, 1910, appellants Fisk and Sargent instituted an action against Joseph Hicks, who was a resident of Illinois, by the issuance of a summons and warrant of attachment, which was levied on certain moneys belonging to Hicks, in this state. A copy of the warrant of attachment and notice of levy were mailed to defendant at his place of residence, Warren, Ill, and were received by him March 18 1910. On April 4, 1910, the summons and complaint were personally served on Hicks in the state of Illinois. On July 11, 1910, judgment for the sum of $549.37 was rendered by default in the circuit court of Potter county against defendant and execution issued, which was returned on August 13, 1910, satisfied out of the moneys levied under the attachment. On September 21, 1910, Hicks served notice of motion to vacate the judgment and for leave to answer, which was heard upon affidavits and the proposed answer. September 28, 1910, an order was entered denying this motion. October 25th notice of a second motion to vacate the judgment was served, accompanied by an affidavit of Hicks with exhibits attached and a proposed answer. November 1st, the date for hearing, this motion was postponed by consent of parties to a time to be agreed upon later. No time was ever agreed upon or any attempt made by either party to bring the motion on for hearing. February 11, 1911, a third notice of motion was served, based upon the same affidavit and exhibits and proposed answer attached to the second notice of motion. This notice was to the effect that defendant would apply to the court for an order vacating the order of September 28, 1910 denying the former motion for leave to answer, and that defendant be permitted to serve and file the accompanying answer. Plaintiff objected to the hearing of this motion on the grounds: (1) That a similar motion is still pending and undetermined; (2) that no leave of court had been granted to make the motion about to be heard; (3) that the order denying defendant's first application for leave to answer is an adjudication of the matter. Plaintiffs read in opposition a number of affidavits, including an affidavit of plaintiff Fisk covering some 15 pages of the printed record. The court thereupon entered an order, containing full and complete recitals of all proceedings theretofore had, among which was a statement that the order of September 28, 1910, denying the motion for leave to answer was based upon the insufficiency of the affidavit of merits on the former motion. Following these recitals was the order, first, that the defendant is given leave to make the motion now before the court, and that the order of September 28, 1910, is in all things vacated, set aside, and held for naught; and the further order that the judgment entered July 11, 1910, be vacated and defendant given leave to serve his proposed answer. It was further ordered that the money received by plaintiffs upon the execution be held as security for any judgment they may recover on the trial of the action, and that defendant pay $40 terms. Appellant assigns as error: (1) The overruling of objections to the hearing of the motion to set aside the judgment; (2) that the court erred in its recitals of certain matters of fact preliminary to the orders complained of; (3) that no leave of court was asked to renew the motion theretofore denied; and (4) that the court erred in vacating the default judgment and permitting defendant to answer. These assignments present but two questions: First, whether the order entered on the first motion was an adjudication of the same matters involved in the ruling appealed from; and, if not, whether the court erred in opening the default. For the purposes of this decision, we shall assume, as contended by appellant's counsel, that the several motions were upon the same grounds and for the same relief.

It is apparently conceded by appellant's counsel, and we agree, that the strict rule of res adjudicata does not apply to motions in a pending action, and that a trial court has jurisdiction to and may allow a renewal of such motions. It is held in New York that a second motion for the same relief upon a new state of facts may be made without leave of the court; but, when the new motion is based on the same state of facts, the hearing of the new motion is discretionary with the court, and leave must be obtained. White v. Munroe, 33 Barb. (N. Y.) 650; Belmont v. Railroad Co., 52 Barb. (N. Y.) 637. In Clopton v. Clopton, 10 N.D. 569, 88 N.W. 562, 88 Am. St. Rep. 749, it was held that the rule requiring previous leave to renew a motion is one of practice merely, and rests in the discretion of the court. In Johnston v. Brown, 115 Cal. 694, 47 P. 686, it is held that the doctrine of res adjudicata is not applicable to motions in pending actions, following Ford v. Doyle, 44 Cal. 635; Bowers v. Cherokee Bob, 46 Cal. 279; Jensen v. Barbour, 12 Mont. 566, 31 P. 592. In Harris v. Brown, 93 N.Y. 390, it is held that the fact that the court hears the same motion a second time is conclusive proof that the court either before or at the hearing had given leave to present the matter anew. Jensen v. Barbour, 12 Mont. 566, 31 P. 592; Kenney v. Kelleher, 63 Cal. 442; Hitchcock v. McElrath, 69 Cal. 634, 11 P. 487. In Carlson v. Carlson, 49 Minn. 555, 52 N.W. 214, it is said: "While the decision of a motion is not usually regarded in the light of res adjudicata, the well-established practice is that, after a motion has been fully heard and determined, it shall not be renewed, and the same questions again raised, except on leave of the court first had or obtained. Sometimes this leave is a part of the order passing on the matter, but ordinarily an independent application has to be made for it." The rule announced by this court in Jeansch v. Lewis, 1 S. D. 609, 48 N.W. 128, is entirely consistent with that established by the foregoing decisions. It will be observed that the motion in the case at bar was an application not only for an order vacating the judgment and permitting defendant to answer, but for a vacation of the previous order as well, and the order of the court made at the hearing expressly gave defendant leave to make the pending motion for vacation of the judgment and also vacated the former order. In passing, we may observe that in most of the cases cited by appellant's counsel, as bearing upon the question under discussion, the motions involved the merits of the action, itself, and in such cases the strict rule of res adjudicata is ordinarily applied. We are clearly of opinion that the permission to renew the motion for leave to answer was within the discretion of the trial court and should not be disturbed.

The motion to vacate the default judgment was...