Gifford v. Bowling

• Decision Date: 06 September 1972
• Docket Number: No. 10883,10883
• Citation: 86 S.D. 615,200 N.W.2d 379
• Parties: Willis GIFFORD, Plaintiff and Respondent, v. John BOWLING, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 379

200 N.W.2d 379

86 S.D. 615

Willis GIFFORD, Plaintiff and Respondent, v. John BOWLING, Defendant and Appellant.

No. 10883.

Supreme Court of South Dakota.

Sept. 6, 1972.

May, Boe, Johnson & Burke and Gale E. Fisher, Sioux Falls, for defendant and appellant.

Charles Rick Johnson, Johnson & Johnson, Gregory, for plaintiff and respondent.

WINANS, Judge.

This case comes before us on an appeal from an order denying a second motion to vacate a default judgment. The case involves procedural questions but in order to understand such questions it is necessary to briefly set forth the background history and procedures followed in the case.

The plaintiff commenced his suit against defendant by summons and complaint in the Circuit Court of Mellette County, South Dakota. Personal service, pursuant to 'the Long Arm Statute', Ch. 163 Laws of 1965, SDCL 15--7, was made on defendant, a nonresident of this state, in Banks, Fayette County, Iowa, on January 5, 1967. The defendant made no appearance or answer to the complaint. On May 10, 1967 plaintiff's attorney gave notice to defendant of intention to move the court on May 18 at the courthouse in the city of Winner, South Dakota, that 'the plaintiff will introduce proof and move the court to grant a default judgment to the plaintiff in accordance with the complaint filed herein.' This notice was served on the defendant by first class mail addressed to him at Banks, Iowa. No appearance was made on defendant's behalf. The court heard the evidence submitted consisting of sworn testimony by plaintiff and a corroborating witness in regard to damages and gave judgment to the plaintiff against the defendant in the sum of $3,150 actual damage, $1,000 punitive damage and $15 costs and disbursements, making a total judgment of $4,165. A judgment was filed and recorded in the office of the Clerk of Courts, Mellette County, South Dakota, on June 22, 1967.

Thereafter Gifford instituted suit in the state of Iowa upon the South Dakota judgment and on December 15, 1967 default judgment was entered by the District Court of Iowa in and for Fayette County against Bowling for the sum of $4,165 with interest from that date and costs. Thereafter, the Iowa judgment was set aside and the case continued pending Bowling's action to set aside the South Dakota judgment. On June 14, 1968 Bowling moved that the South Dakota default judgment be set aside on the grounds of excusable neglect and inadvertence. He claimed he had a good, meritorious defense to the alleged cause of action of the plaintiff. This motion was brought on for hearing on November 18, 1968 before the circuit judge. After hearing, the motion was denied, the order thereon being entered on January 15, 1969. No appeal was taken from this order.

On April 7, 1969 the District Court of Iowa in and for Fayette County again entered judgment for Gifford against Bowling in the same amount. The judgment of the Iowa court reflects that a certified copy of the January 15, 1969 order made by the Circuit Court of Mellette County, South Dakota, denying defendant's motion to set aside default judgment had been filed with the court there.

Eight months later on December 13, 1969 Bowling again served another motion to set aside the South Dakota judgment. A hearing was had and the order denying this second motion to vacate was filed August 19, 1970. It is from this order that Bowling appeals.

The second motion to vacate judgment was made pursuant to the provisions of SDCL 15--6--60(b)(2) and 15--6--60(b)(3) to vacate the judgment or to open it up on the grounds that said judgment was procured by plaintiff's fraudulent representations and allegations and upon the further ground of newly discovered evidence. In his second motion to vacate, the defendant also states that the false representations contained in the plaintiff's complaint and the default judgment entered thereon have resulted in a fraud upon defendant, as well as a fraud upon the court.

The files in the case further show that within a few days after service of the complaint Mr. Bowling took the summons and complaint to his Iowa attorney, whom he advised that he was desirous of avoiding the expense of defending the suit if it wasn't necessary. The Iowa attorney decided that any judgment against Mr. Bowling would be only in rem and that execution would not issue upon any such judgment except as against property Mr. Bowling might own within the state of South Dakota. As a consequence of this and because Mr. Bowling had no property in South Dakota, no answer to the summons and complaint was made and Mr. Bowling told his attorney to ignore the same. It was only after the suit in Iowa, based on the South Dakota judgment, that the defendant became concerned about its legal effect and his liability.

The complaint in this action, in brief, alleges that the defendant through an agent in March of 1961 sold two registered quarter horse mares to the plaintiff at the plaintiff's ranch in Mellette County, South Dakota, that said agent was driving one of defendant's trucks in which he hauled the quarter horse mares, that he represented the horses as belonging to the defendant and as being registered by the American Quarter Horse Association, that the plaintiff paid the defendant's agent $1,400 in cash plus horses worth at least $500 and that the quarter horse mares were left at his ranch and that defendant's agent promised defendant would promptly send to the plaintiff the transfer papers showing title to the two registered mares as having been transferred to the plaintiff. The complaint further alleges that the defendant failed to do this, had no intention of so doing and because of this failure, the plaintiff was unable to register the colts thereafter born to these two mares, and asked for $3,150 general damages and $5,000 exemplary damages. The showing of the defendant on his second motion to set aside the default judgment is a denial that the person who sold the horses to the plaintiff was defendant's agent, that defendant had previously sold the mares at a quarter horse sale held at the St. Louis Horse Auction Company on February 17 and 18 of 1961, and that as a consequence of having sold them there and having signed the proper transfer papers there he was in no position to and did not sell them to the plaintiff.

The motion for relief of the default judgment must be decided pursuant to the provisions of SDCL 15--6--60(b). The pertinent provisions of that section insofar as this case is concerned are as follows:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under § 15--6--59(b);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * * Section 15--6--60 does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided by statute or to set aside a judgment for fraud upon the court.'

By the terms of the motion here involved, Bowling specifically moved to set aside the default judgment under (2) and (3) of the above cited section. This motion was made 18 months after judgment. Moore's Federal Practice, Vol. 7, beginning at Sec. 60.28(2), p. 319, states as follows:

'If a motion for relief under clause (1), or (2), or (3) is not made within a reasonable time it will be denied, although made within the one year period. While the 'reasonable time' limitation may cut down the one year period, it cannot, however, enlarge that period, for a motion for relief under clause (1) or (2) or (3) is subject to a maximum one year period, computed generally from the entry of the final judgment, and, in general, that time is not enlarged by the taking of an appeal.

'This maximum period of one year is not subject to enlargement by the court; and may not properly be circumvented by a utilization of any of the other clauses, (4), (5), or (6), which are subject only to a reasonable time limitation, where the reason for relief is embraced within clauses (1), (2), or (3). * * *

'Nor should relief be available on a motion, made more than one year after the judgment was entered, on the basis of fraud upon the court unless the fraud can legitimately be so classed, for the maximum one year period of clause (3) bars relief by motion for other types of fraud, whether intrinsic or extrinsic, of the adverse party.'

In discussing Rule 60(b) Barron and Holtzoff, Federal Practice and Procedure, at § 1330 gives the rule as follows:

'* * * Motions under clauses (1), (2) and (3), attacking the judgment on grounds of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud or misconduct of a party must be made not later than 'one year after the judgment, order, or proceeding was entered or taken.' But this one year period represents an extreme limit, and the motion will be rejected as untimely if not made within a 'reasonable time' even though the one year period has not expired. The party will be required, on any motion under the rule, to show good reason for his failure to take appropriate action sooner. But the concept of reasonable time cannot be used to extend the one year limit. A motion under clauses (1), (2) or (3) must be denied as untimely if made more than one year after judgment regardless of whether the delay was reasonable. * * *'

However, the defendant seeks to have a review of the first order...