Griswold Linseed Oil Co. v. Lee
| Decision Date | 05 February 1891 |
| Citation | 47 N.W. 955,1 S.D. 531 |
| Parties | Griswold Linseed Oil Co. v. Lee. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. On the hearing of an application to set aside a default and judgment, and for leave to serve an answer, the evidence should be confined to the question whether the judgment has been taken through the mistake, inadvertence, surprise, or excusable neglect of defendant. The applicant is not required to make more than such a prima facie showing on the merits as arises from his own affidavits, and affidavits to controvert his affidavit of merits are irrelevant, and inadmissible.
2. The provisions of section 4939, Comp. Laws, conferring upon courts the power to "relieve a party from a judgment *** taken against him through his mistake, inadvertence surprise, or excusable neglect," are liberal in their terms, remedial in their character, and were designed to afford parties a simple, speedy, and efficient relief in a most worthy class of cases, and this power should be exercised by courts in the same liberal spirit in which they were designed, in furtherance of justice, and in order that cases may be tried and disposed of upon their merits.
3. When, therefore, a party makes a showing of such mistake inadvertence, surprise, or excusable neglect, applies promptly for relief after he has notice of the judgment shows by his affidavit of merits that prima facie he has a defense, and that he makes the application in good faith, a court should not hesitate to set aside the default, and allow him to serve an answer upon such terms as may be just under all the circumstances of the case.
4. This court recognizes the rule that, on applications for relief under the section referred to, much must be left to the sound judicial discretion of the court to which applications are made; but it holds in this case the defendant was entitled under the showing made by him, to the relief asked for, and reverses the order of the court below denying defendant such relief.
5. Where relief is granted, a court, in addition to costs, may impose as terms that the judgment stand as security for any judgment that may finally be recovered by the plaintiff in the action.
6. Under the authority of section 4939, as well as by its general powers, a court may modify a judgment by depriving it of its ordinary character as res adjudicata, and leaving it in full force as a lien or collateral security.
Appeal from circuit court, Minnehaha county.
Keith & Bates and Winsor & Kittredge, for appellant. McMartin & Carland, for respondent.
This action was instituted by the plaintiff to recover the sum of $759.15, alleged to be due from defendant for money advanced under a certain contract entered into between plaintiff and defendant on July 13, 1887, and for the sum of $4,372.58, for profits received by defendant on resale of flaxseed alleged to have been purchased by defendant for account of plaintiff, interest, etc., under the terms of said contract. The summons and complaint were personally served upon the defendant in Minnehaha county on the 25th day of March, 1890, and, defendant failing to serve an answer within the 30 days allowed by law, judgment was entered against him April 26, 1890, for the sum of $4,643.20, an execution was issued thereon, and a levy made thereunder on the property of the defendant. On May 6, 1800, the defendant obtained from the court below an order requiring plaintiff to show cause why the judgment should not be vacated and set aside, the execution and levy set aside, and the defendant have leave to serve an answer in the action. This order was made upon the affidavit, affidavit of merits, and proposed verified answer of defendant, and the pleadings and proceedings had in the action. The grounds upon which the application was based were inadvertence, surprise, and excusable neglect on the part of the defendant.
On May 9th a hearing was had, an order made discharging the order to show cause, and the application of defendant denied. From this order and the judgment entered in the action, the defendant appeals to this court.
Appellant assigns several errors, which may be condensed, and briefly stated as follows: First, that the court erred in discharging the order to show cause, and denying to defendant the relief applied for; second, that the court erred in entering judgment for the plaintiff, said judgment not being supported by the allegations of plaintiff's complaint. Preliminary to the discussion of the first assignment of error is a question as to the relevancy and admissibility of certain evidence. On the hearing of the order to show cause, in the court below, the respondent introduced and read in evidence the affidavits of Mr. Carland, Mr. McMartin, and several letters written by defendant to the law firm of McMartin & Carland, tending to controvert the affidavit and proposed answer of defendant as to the merits of his defense, and also tending to show that the defendant's failure to answer in time was not excusable, and that his application was not made in good faith. Counsel for appellant contend that the evidence controverting the merits of defendant's defense was not admissible, and that such evidence should not have been considered by the court below. But, as no objection was taken to this evidence in that court, counsel for respondent insist that it is now too late to make the objection in this court, and cites Warder, Bushnell & Glessner Co. v Ingli, 46 N.W. 181, (decided by this court,) as authority for their position. We held in that case that, where incompetent but relevant evidence was admitted in the court below without objection, an objection to it could not be taken in this court, but this opinion went no further. On the hearing in the court below the only issue properly before the court was whether or not there was inadvertence, surprise, or excusable neglect on the part of the defendant in failing to serve his answer in time; and evidence to controvert the merits of defendant's defense was entirely irrelevant to the issue. Mr. Freeman, in his work on Judgments, in section 109, states the rule of evidence applicable to such a hearing as follows: Gracier v. Wier, 45 Cal. 53; Francis v. Cox, 33 Cal. 323; Hill v. Crump, 24 Ind. 291; Buck v. Havens, 40 Ind. 221; Joerns v. La Nicca, (Iowa,) 38 N.W. 129; Hanford v. McNair, 2 Wend. 286. We are of the opinion that the appellant's contention is correct, and that the counter-affidavits and exhibits, so far as they tended to controvert the merits of the defendant's defense, were clearly...
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