Marin v. Titus

• Decision Date: 03 September 1909
• Parties: MARIN v. TITUS.
• Court: South Dakota Supreme Court

122 N.W. 596

23 S.D. 553

MARIN v. TITUS.

Supreme Court of South Dakota

September 3, 1909

Appeal from Circuit Court, Jerauld County.

Action by W. A. Marin against G. M. Titus. From an order denying defendant's motion to vacate a judgment, he appeals. Affirmed.

T. H Null, for appellant.

J. G Bradford, for respondent.

WHITING J.

This cause comes to this court upon an appeal from an order of the trial court denying the motion of the defendant asking that such trial court vacate the judgment rendered by said court herein. It appears from the record that this was an action brought to recover upon three certain promissory notes; that summons was issued herein August 1, 1903, which summons stated that the complaint would be filed in the office of the clerk of the circuit court. The return on said summons was in the form of an affidavit, and stated that the affiant made diligent search for the defendant in the county of Jerauld but could not find defendant; that he did find his dwelling house in the said county, and found a person over 14 years of age in charge thereof; that affiant served said summons upon defendant, by delivering and leaving with such person found in charge of defendant's dwelling house a true and attested copy of the summons, on August 29, 1903. The return further states that affiant knows the place of service to be the dwelling house of the defendant, and the person to whom the paper was delivered to be the wife of defendant. Judgment upon default was taken in November, 1904. The notice of motion to vacate judgment was served in December, 1906, and states that the motion will be made upon affidavits and proposed answer attached to such notice.

While the attaching of the proposed answer and the part of the affidavits in relation to the merits of the cause would ordinarily indicate that the motion was one to vacate the judgment on the grounds of excusable neglect, yet it is quite evident that the ground relied upon was want of jurisdiction and the parties have so treated the motion, both before the trial court and upon this appeal. It would appear, however from statements found in the appellant's brief, that the trial court based its ruling denying the motion largely, if not entirely, upon the proposition that the defendant had submitted himself to the jurisdiction of such court by his offering an answer in said cause. Inasmuch as respondent does not seem to rely upon such position, but contends that the trial court had jurisdiction through service of the summons, and that upon the showing made on motion to vacate the judgment the court was fully justified in denying the...