Hawkins v. Kennedy

• Decision Date: 07 February 1961
• Docket Number: No. 9877,9877
• Citation: 79 S.D. 33,107 N.W.2d 340
• Parties: Frank R. HAWKINS and Florence R. Hawkins, Plaintiffs and Appellants, v. James H. KENNEDY, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 340

107 N.W.2d 340

79 S.D. 33

Frank R. HAWKINS and Florence R. Hawkins, Plaintiffs and Appellants, v. James H. KENNEDY, Defendant and Respondent.

No. 9877.

Supreme Court of South Dakota.

Feb. 7, 1961.

T. R. Johnson, Sioux Falls, for plaintiffs and appellants.

Christopherson & Bailin, Sioux Falls, for defendant and respondent.

SMITH, Presiding Judge.

In a complaint of two counts based on promissory notes of $2,500 each, plaintiffs failed to include a direct allegation that defendant's promises to them were made without any intention of performing them but did allege in part as follows:

'That the defendant has been guilty of a fraud in contracting the aforesaid debt and incurring the obligation for which this action is brought. That at the time the defendant received said sum of money he and his wife were the record owners of residential property, viz., Lot 8, Block 1, Happy Hollow Second Addition to Sioux Falls in said Minnehaha County. That the said defendant represented to said plaintiffs that said property was reasonably worth $25,000, except it was encumbered by a mortgage in favor of the Home Savings Association of Sioux Falls in the sum of $10,000. That the said defendant, as a further consideration and security for the aforesaid loan, alleged that he owned and/or controlled other real property in said city and would be selling said Lot 8 and such other property, and when such sales were consummated he would pay the plaintiffs' aforesaid loan. That he wilfully and intentionally represented to plaintiffs that in any event the proceeds derived from the sale of said lot 8 would be used to pay the aforesaid loan the plaintiffs made him. That the plaintiffs relying upon said representations of said defendant, and believing them to be true, and not knowing otherwise, or that they were false, loaned the said defendant said money.'

and did pray

'4. That the judgment be based upon Chapter 37.25 of the South Dakota Code of 1939, and acts amendatory thereto, namely: That in contracting the aforesaid indebtedness the defendant was guilty of fraud, and that this action is one for breach of an obligation based upon the defendant's deceit.'

The defendant defaulted and a default judgment was entered on the 21st day of January 1960 which reads in part as follows:

'Ordered, adjudged and decreed that the defendant was guilty of a fraud in contracting the aforesaid debt and incurring the obligation upon which this action was brought; that said debt was incurred for property obtained under false pretenses.'

Thereafter, pursuant to SDC 1960 Supp. 33.0108, defendant made a motion to have the judgment vacated or opened to permit an answer and a trial of the issue of fraud. The ground upon which the motion was made was the mistake of defendant. The order of the trial court which opened the judgment as prayed found in favor of defendant on the issue of mistake, and also found

'that adequate proof to justify the finding that the Defendant was guilty of Fraud and the issuance, execution and filing of a judgment determining that the Defendant had committed fraud, was not presented at the time said judgment was taken, and the Court was not aware that he was determining an issue of Fraud by issuing said judgment.'

Subsequently a trial of the issue of fraud was had, and the court found plaintiff had failed to prove defendant guilty of fraud. The issue of fraud was ordered dismissed and the money judgment stands.

The first contention of plaintiffs is that the showing of defendant in support of his motion to vacate or open the judgment was merely a mistake of law, as distinguished from a mistake of fact, and therefore the trial court abused its discretion in opening the judgment. For us to consider this contention would be of no avail to plaintiffs. It is settled that, apart from SDC 1960 Supp. 33.0108, a trial court is vested with inherent power to correct its judgments entered by inadvertence. Purinton v. Purinton, 41 S.D. 125, 169 N.W. 236; Boshart v. National Benefit Association, Inc., 65 S.D. 260, 173 N.W. 7; Payton v. Rogers, 66 S.D. 486, 285 N.W. 873; and Moore v. Connecticut General Life Ins. Co., 71 S.D. 512, 26...