Jones v. Johnson

• Decision Date: 31 December 1928
• Docket Number: 6329
• Citation: 54 S.D. 149,222 N.W. 688
• Parties: W. L. JONES, Trustee, Appellant, v. J. H. JOHNSON, Respondent.
• Court: South Dakota Supreme Court

54 S.D. 149

222 N.W. 688

W. L. JONES, Trustee, Appellant, v. J. H. JOHNSON, Respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County; Hon. John T. Medin, Judge # 6329—Affirmed Mundt & Mundt, Sioux Falls, SD Attorneys for Appellent J. W. Kaye, Beresford, SD M. G. Luddy, Sioux Falls, SD Attorneys for Respondent Opinion Filed Dec 31, 1928

MORIARTY, C.

This is an appeal from an order vacating a default judgment and allowing the defendant to answer.

On October 30, 1925, this action was begun by service of summons and garnishee summons. On April 6, 1926, judgment in the sum of $1,242.82 was entered against the defendant, upon showing of default on defendant’s part. On June 26, 1926, defendant presented to the trial court a petition for an order vacating the default judgment and granting leave to answer, and on that date an order to show cause was issued upon such petition. On July 28, 1926, after the hearing of the aforesaid order to show cause, the trial court entered the order from which this appeal is taken.

The showings upon which the trial court entered the order appealed from are as follows: The complaint alleges the giving by the defendant to the plaintiff of a promissory note dated December 13, 1921, and due December 13, 1922, for the sum of $828.78, with interest at 8 per cent, and that said note is wholly unpaid. And said complaint further alleges that there was due at the date thereof, from the defendant to the plaintiff, the sum of $1,017.61. And the prayer of the complaint is for judgment in the said sum of $1,017.61, with interest from the date of the complaint at 8 per cent, together with costs.

Defendant’s showing of mistake, inadvertence, and excusable neglect consists of his own affidavit and that of his attorney, M. G. Luddy. These affidavits are to the following effect: On October 30, 1925, defendant was employed as secretary of the Elks Lodge in the city of Sioux Falls. The garnishee summons in this action was directed to said lodge and was served upon one F. D. Burke, the Exalted Ruler of said lodge. After such service, the defendant took up the matter with Mr. Burke, who told the defendant that the matter would be taken up with Mr. Luddy and attended to, and that defendant need do nothing further in the matter. Mr. Burke gave the summons and garnishee summons to Mr. Luddy and requested him to attend to it. Mr. Luddy prepared a disclosure on behalf of the lodge, showing nothing due to defendant, but he was not aware that he was expected to enter any appearance on behalf of the defendant, and did not do so until he was notified of the entry of judgment. As affecting this matter of excusable neglect, the trial court also had before it the affidavit of John C. Mundt, one of plaintiff’s attorneys, stating that shortly after the service of the papers in the action said attorney had a conversation with the defendant in which the defendant asked to have the matter of taking judgment held in abeyance until he got a job and he would then make partial payment on the debt. Mr. Mundt says that he then told the defendant to let him know when he got a job, and that, if he would do so and pay about $50 per month on the debt, the entry of judgment would be held in abeyance and further costs avoided. But this affidavit further stated that defendant did nothing in the matter of keeping affiant advised or in making any payments. And affiant says that, before taking judgment, his firm mailed to defen...