Gibson v. Smith
| Decision Date | 12 January 1910 |
| Citation | 124 N.W. 733,24 S.D. 514 |
| Parties | GIBSON v. SMITH et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brule County.
Action by Charles E. Gibson against C. J. Smith and another. There was a default judgment for plaintiff which was thereafter vacated, and from a subsequent judgment for defendant Smith and an order denying a new trial, plaintiff appeals. Affirmed.
W. F Mason, for appellant.
James Brown, for respondents.
This was an action brought by the appellant against the defendants C. J. Smith and Ole Carlson, the purpose of which was to quiet the title to a certain tract of land in Brule county. The defendant Carlson was made a party solely for the purpose of restraining him, as treasurer of said county, from issuing a tax deed upon a certain tax certificate held by defendant Smith, and it will be unnecessary for us to give the defendant Carlson any further notice. Summons having been personally served upon both of the defendants herein, the defendant Smith being served on March 23, 1904, and no formal appearance or answer having been made on behalf of either of the defendants, the plaintiff applied to the court for judgment, and judgment was entered for plaintiff on May 2 1904. The complaint herein sets forth: That the plaintiff is the owner in fee of the premises in question; that the defendant Smith claimed some estate or interest in the premises adverse to plaintiff, but that such claims are without right; that the defendant Carlson, as treasurer threatens to issue a tax deed to defendant Smith on a tax sale of the year 1896 for taxes of 1895; and that the defendant Smith wrongfully claims some interest in said land from payments of taxes thereon for the years 1891 to 1902 inclusive. Complaint then sets forth certain tenders that had been made by the plaintiff to the defendant on account of taxes paid by such defendant, and finally alleges that defendant since February 5, 1902, had been in wrongful possession of the property, and claim is made for reasonable value of the use and occupation of same. It will be noted from the above that the complaint contains no allegation that defendant claims any interest in said premises under and by virtue of any tax deed. The judgment entered as above mentioned quieted the title in the plaintiff to said land as against all right, title, or interest on the part of defendant Smith, upon the payment of a certain sum into court by the plaintiff for the defendant Smith. The judgment in no manner specifically referred to any interest claimed by the defendant under any tax deed. In November, 1904, the defendant Smith brought on for hearing before the trial court a motion asking to have the default judgment herein vacated and for the leave to answer, such motion being based upon affidavit of such defendant together with proposed answer attached thereto. The plaintiff resisted said motion, and in opposition filed several affidavits including those of counsel for plaintiff; attached to the affidavit of such counsel being copies of two letters-one from defendant Smith dated April 20, 1904, to plaintiff's attorney, and the other the reply of the attorney to the defendant, under date of April 29, 1904. The trial court granted the motion of defendant; the parties joined issues herein; the cause was tried and findings and judgment herein entered in favor of defendant Smith; the trial court denied a motion for new trial; and the plaintiff has appealed from the judgment herein and from order denying new trial. Upon such appeal plaintiff and appellant brings first for our consideration, the above-mentioned order opening the default and allowing defendant to answer.
From the affidavits and letters presented upon such motion the following facts appeared. Under date of April 20, 1904, the defendant wrote plaintiff's attorney as follows: "Please let me know what for or what about your complaint is." It will be noted that this letter purports to have been written before the defendant was in default, but the postmark upon the envelope shows that the same was not mailed until the afternoon of April 23d, at which time defendant was in default. This letter reached Aberdeen on April 25th, and was received by the attorney for plaintiff on April 26th. On April 29th, the attorney wrote the following letter to the defendant:
It will be noticed that this letter was dated three days prior to the date of entry of judgment, although it recites therein that the action has gone to judgment. It will also be noticed that in this letter the defendant is advised that an attack had been made upon his tax deed. From the proposed answer it appeared that defendant held a tax deed to the land; that even if his tax title should be held void, yet besides being entitled to recover for taxes paid (which was the only thing conceded by complaint and covered by default judgment), he was entitled to recover for improvements consisting of fencing and breaking, and this the plaintiff did not deny in his affidavits. The matter of opening up defaults is one largely in the discretion of the trial courts, and certainly such discretion should not be interfered with by this court unless it clearly appear that such trial court was not justified in its course, and it appears to us that such trial court was fully justified in opening the default, if for no other reason, because of the fact that it appears that judgment was rendered in ignorance of certain matters that should have been brought to the attention of such court. The court was lead to enter a decree, which absolutely cut off all right, title, or interest of the defendant Smith, without there being in the complaint anything which indicated the fact that such defendant had a tax deed to this land. If such tax deed had been presented to the court it might, and undoubtedly would, have held it to be a complete defense to the action and would have denied plaintiff the relief sought, even though the defendant had not appeared. We do not believe that any trial court, if he had been fully advised in relation to the letter written by the defendant, would have entered a default judgment without requiring something to be done to further notify the defendant; at least it was the duty of the attorney to call the attention of the trial court to this letter, and he makes no claim that he did so. And then when it appears that not only had defendant a claim under his tax deed, but undoubtedly a material claim by virtue of the improvements, of which improvements the court had been in no manner advised, it certainly would have been an abuse of discretion to deny the opening of the default.
This brings us to the merits of this case. The defendant in his answer sets up a claim as fee owner under and by virtue of a tax deed dated August 22, 1895, which deed was based on a certificate of sale dated November 7, 1892, issued upon sale of such land for unpaid taxes of the year 1891. Such answer further alleges that such tax deed had been of record more than three years prior to the commencement of the action, and the defendant pleads the three years' statute of limitations, as a defense. The reply admits that plaintiff claims title; admits the land was subject to taxation for the year 1891, but attacks the assessments for said year; admits the recording on August 22, 1895, in the office of the register of deeds of the record purporting to be a record of an instrument signed and acknowledged by the treasurer of said county, and purporting to convey certain lands including the land in question, which record was headed "Treasurer's Tax Deed," but denies that such document was of the form required in the year 1895 or any time for such tax deed, and denies that the same contains the recitals necessary in such record, and denies that it was a tax deed. The reply further admits that three years had elapsed since the recording above referred to and before the commencement of the action; admits the making of certain improvements upon the premises, which had been pleaded in said answer; and alleges the depositing in the court of $300, which had been tendered in the complaint.
Upon the trial a large volume of evidence was offered and...
To continue reading
Request your trial