Heitman v. Gross

• Decision Date: 26 June 1945
• Docket Number: 8770.
• Citation: 19 N.W.2d 508,70 S.D. 510
• Parties: HEITMAN v. GROSS.
• Court: South Dakota Supreme Court

19 N.W.2d 508

70 S.D. 510

HEITMAN v. GROSS.

No. 8770.

Supreme Court of South Dakota

June 26, 1945

R. J. Lyons and J. H. Lammers, both of Madison, for appellant.

T R. Johnson, of Sioux Falls, and Wm. R. Arneson, of Madison for respondent.

SICKEL Judge.

This is a proceeding to vacate a default judgment. A money demand summons was served on the defendant personally on February 16, 1931. Thereafter defendant entered an appearance, and on November 20, 1931, the complaint was served upon his attorney. Plaintiff's attorney made affidavit of default on March 25, 1932, and judgment by default was entered March 28, 1932. No notice of entry of judgment was given to defendant, and no execution was ever issued. On July 25 1944, defendant served a notice of motion to vacate the judgment, with affidavits and proposed answer attached. On August 31, 1944, the circuit court entered an order denying the motion and from that order the defendant has appealed.

Appellant's first contention is that he was not given six days notice of the time and place of the application for judgment. Respondent admits that such notice was not given but claims that none was required by statute. Subdivision 1, § 2485, Rev.Code 1919, in effect at the time of the entry of judgment, contained the following provision:

'In case the defendant give notice of appearance in the action, he shall be entitled to six days notice of the time and place of such assessment.'

This provision did not apply to an action arising upon contract for the recovery of money only, where the complaint was verified. Searles v. Lawrence, 8 S.D. 11, 65 N.W. 34; Henderson v. Egan, 43 S.D. 366, 179 N.W. 31.

It should be noted that this rule was changed by the code revision of 1939. SDC 33.1707. Since the adoption of the 1939 code every party who has given notice of appearance before the expiration of the time for answering is entitled to six days notice of application for judgment, and prejudice is conclusively presumed from the failure to give such notice. Peterson v. McMillan, S.D., 14 N.W.2d 97.

Appellant also claims that the judgment was taken against him through his mistake, inadvertence, surprise and excusable neglect that he has a meritorious defense to the action and that therefore he is entitled to have the judgment set aside. Assuming, without deciding, that the affidavits of defendant presented in support of his motion are sufficient to show mistake, surprise and excusable neglect, the question...