Ingalls v. Arbeiter

• Decision Date: 05 April 1949
• Docket Number: 9017.
• Citation: 36 N.W.2d 669,72 S.D. 488
• Parties: INGALLS v. ARBEITER.
• Court: South Dakota Supreme Court

36 N.W.2d 669

72 S.D. 488

INGALLS v. ARBEITER.

No. 9017.

Supreme Court of South Dakota

April 5, 1949

Rehearing Denied June 17, 1949.

Temmey & Luby, of Huron, for defendant and appellant.

Max Royhl, of Huron, for plaintiff and respondent.

ROBERTS Judge.

Defendant having moved to vacate the judgment entered against him appeals from the order denying the motion.

In his complaint served July 22, 1947, plaintiff alleged that defendant sold to him 1350 gallons of a mixture known and described under the trade name of 'Cromax-5 Anti-Freeze'; that defendant warranted that this product like Prestone contained an ethelyn glyco base and was suitable for use as an anti-freeze and in no manner injurious to the cooling system of a motor vehicle; that in fact the compound was unfit for use in motor vehicles, was not the same as Prestone and did not have an ethelyn glyco base; and demanded that plaintiff be reimbursed for the amount paid to the defendant for the compound and amounts expended by plaintiff for repairs of motor vehicles damaged by its use. The defendant answered August 4, 1947 interposing a general denial. Plaintiff noticed the case for trial at the January, 1948, term of the circuit court in Beadle county. Counsel for defendant resided in Hutchinson county. He sought by telephone to arrange with Mr. Royhl, attorney for the plaintiff, to have the case continued over the term. The latter stated that he would agree to try the case to the court, without a jury, upon ten days' notice. It is conceded that counsel reached no agreement. There was on January 19, 1948, a trial of the case in the absence of defendant and his counsel and judgment was entered awarding to the plaintiff damages in the sum of $3794.00 and costs.

On January 27, 1948, defendant filed a motion to set aside the judgment. This motion was heard on February 5, 1948, and was denied. Defendant then employed other counsel. Thereafter, on March 9, 1948, defendant sought leave to renew motion to set aside the judgment. Defendant was given leave to make such motion. The second motion was accompanied by verified showing in support of the claim that defendant himself was in no manner negligent and that under the circumstances of the instant case was not chargeable with the negligence of his former counsel. This motion was heard on May 18, 1948, and thereafter, on June 12, 1948, was denied. It is from this order that defendant appeals.

It is within the jurisdiction of a circuit court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. SDC 33.0108. It is the settled law that whether a motion to vacate a judgment under the section referred to shall or shall not be granted is a matter which rests in the sound discretion of the trial court and that an order either granting or denying such a motion will not be disturbed on appeal unless it appears that the trial court abused its discretion. See Fisk v. Hicks, 29 S.D. 399, 137 N.W. 424, Ann.Cas.1914D, 971, and cases cited. It is a judicial discretion to be exercised in accordance with legal and equitable principles and should be so exercised as to promote the ends of justice. This court is more inclined to reverse for failure to set aside a judgment taken by default as in the absence of a litigant and his counsel than where such judgment has been set aside and trial on the merits granted. Rosebud Lumber Company v. Serr, 22 S.D. 389, 117 N.W. 1042; Bucknell v. Archer, 29 S.D. 22, 135 N.W. 675.

It is the rule of this court as stated in Smith v. Wordeman, 59 S.D 368, 240 N.W. 325, 326: '* * * that the negligence of an attorney is imputable to his client, and that the client cannot be relieved from a judgment taken against him because of the neglect of his attorney unless he shows that the neglect of the attorney was excusable, or, in the alternative, assumes the burden of clear affirmative proof that he himself (the client) was in no manner negligen,' From the fact that the negligence of an attorney may be imputable to his client, it does not follow that this is the rule where the conduct of an attorney may in effect amount to a fraud upon his client. Olson v. Advance Rumely Thresher Company, 42 S.D. 332, 175 N.W. 192. In Searles v. Christensen, 5 S.D. 650, 60 N.W. 29, the defendant neglected to appear at time of trial and defend because he was misinformed by his attorney that the action against him had been discontinued. In Conley v. Lunzman, 47 S.D. 241, 197 N.W. 294, it was said that defendants should not be held responsible for the conduct of an attorney who representing them in separate actions involving the same issue, after the direction of an adverse verdict in the first action tried, withdrew the answers in the other actions and left the court room without explanation and with the result that default judgments were entered. Some authorities take the view that there is a distinction between the negligence of an attorney...