Frisbee v. Dale, 12232

• Decision Date: 22 December 1978
• Docket Number: No. 12232,12232
• Citation: 272 N.W.2d 806
• Parties: Lloyd FRISBEE and Linda Frisbee, Plaintiffs and Respondents, v. Dennis DALE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 806

272 N.W.2d 806

Lloyd FRISBEE and Linda Frisbee, Plaintiffs and Respondents, v. Dennis DALE, Defendant and Appellant.

No. 12232.

Supreme Court of South Dakota.

Dec. 22, 1978.

Steve Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for plaintiffs and respondents.

William G. Taylor, Jr., of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

WOLLMAN, Chief Justice.

This appeal is from a default judgment entered against appellant Dale. We reverse and remand.

This action was commenced by service of a summons and complaint upon appellant on November 4, 1976. The complaint alleged that respondents had advanced $1,750 to appellant for construction of a fireplace in their new home, that appellant had made no effort to fulfill the alleged contract, and that respondents had suffered general and punitive damages in the amount of $11,750. Appellant did not file an answer, and on December 8, 1976, following an evidentiary hearing on damages, the trial court entered a default judgment of $5,250 plus costs against appellant.

Upon learning of the judgment, appellant retained counsel and moved to set aside the default and to allow appellant to interpose an answer. Following a hearing on the motion the court found appellant's defense meritorious and his neglect excusable. The trial court in a letter to counsel stated in part:

The default judgment is vacated and defendant is given relief to serve and file his proposed Answer and Counterclaim upon payment to plaintiffs (through their attorney) of the sum of $150.00. After such service plaintiffs will have 20 days in which to file a Reply. Counsel for defendant will prepare an Order for my signature.

On January 26, 1977, the trial court signed an order that had been prepared by appellant's counsel and which provided in pertinent part:

ORDERED that the Judgment against the defendant and in favor of the plaintiffs taken by default on December 8, 1976, is in all respects null, void, and set aside, and shall not be given any effect whatever, and that the proposed Answer and Counterclaim of defendant shall be allowed, including the demand for jury trial, and that defendant shall pay plaintiffs the sum of $150.00 as terms.

Appellant timely served an answer and counterclaim on January 31, 1977, but did not tender the $150 in terms until March 10, 1977.

On February 21, 1977, respondents' counsel wrote a letter to appellant's counsel and the court stating his belief that the payment of terms was a prerequisite to appellant's filing an answer and counterclaim and requesting the court to reaffirm the default judgment. The court denied this motion and on March 17, 1977, entered a nunc pro tunc order as follows:

ORDERED that the Judgment against the defendant and in favor of the plaintiffs taken by default on December 8, 1976, is in all respects null, void and set aside, and shall not be given any effect whatever, and that the proposed Answer and Counterclaim of defendant shall be allowed, including the demand for jury trial upon payment by defendant of $150.00 as terms to plaintiff. It is further

ORDERED, that this Order be, and hereby is effective, if the same were entered on the 26th day of January, 1977.

On April 6, 1977, the trial court signed an order granting respondents' motion to enter default judgment against appellant and on April 7, 1977, entered a judgment in the amount of $5,250 plus costs in favor of respondents. This appeal resulted.

We are limited in our review to consideration of only those orders actually entered by the trial court. As we said in Wall v. Wall, S.D., 260 N.W.2d 644, 648: "It is now settled in this state that the memorandum opinion is not material and is of no binding force and effect as a matter of law either upon the trial judge himself or anyone else. Christiansen v. Strand, 82 S.D. 416, 420, 147 N.W.2d 415, 417 (1966)." See also Connolly v. Sherwood, S.D., 268 N.W.2d 140.

There is no allegation that the discrepancies between the trial court's letter to counsel and the order as signed by the court resulted from any deliberate misconduct on the part of appellant's counsel. There is nothing in the record that would in any way indicate that appellant's counsel did anything other than to misinterpret the trial court's letter. We assume, without deciding, that the trial court could...