McAndrews v. Security State Bank

• Decision Date: 04 June 1910
• Citation: 25 S.D. 590,127 N.W. 536
• Parties: THOMAS MCANDREWS, Plaintiff and appellant, v. SECURITY STATE BANK OF MONTROSE, SOUTH DAKOTA, Defendant and respondent.
• Court: South Dakota Supreme Court

25 S.D. 590, 127 N.W. 536 (1910)

THOMAS MCANDREWS, Plaintiff and appellant v SECURITY STATE BANK OF MONTROSE, SOUTH DAKOTA,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge

Affirmed

M. A. Butterfield

Attorney for appellant.

Wagner & VanDemark

Attorneys for respondent.

Opinion filed June 4, 1910

CORSON, J.

This is an appeal by the defendant from an order denying the defendant's motion to vacate and set aside a judgment by default, and for leave to answer. The action was instituted by the plaintiff to recover of the defendant the sum of $237.20 with interest from March 20, 1908. The summons and complaint were personally served upon the defendant by the sheriff of McCook county on September 22, 1908, by delivering a copy of the same to P. G. Williams, its president. On October 27, 1908, no appearance having been made on the part of the defendant, and no answer filed, the plaintiff presented to the court affidavit of default, and thereupon a default judgment was entered for the sum of $242.34 and costs. On November 14th, this judgment was filed for record, and recorded in the judgment record of McCook county. On the same day an execution was issued and placed in the hands of the sheriff, but at the request of the defendant through its president, no levy was made thereunder. On March 15, 1909, defendant served upon plaintiff's attorneys notice of motion to vacate the default judgment, and for leave to answer, which motion was accompanied by a proposed answer. This motion was heard on March 27th, and denied by the court, and on March 29th an appeal was taken to this court from the order denying the motion. It would appear from the record, though not stated in the notice of motion, that the motion was made upon the ground of inadvertence, surprise, and excusable neglect. It is stated in the affidavit of P. G. Williams, the president of the defendant, that he, prior to the time when defendant's time to answer expired, took the copy of summons and complaint to the office of M. A. Butterfield, defendant's regular attorney, at Montrose, S. D., and left the same in care of a lady stenographer then in charge of the office, said Butterfield being then absent, and informed said stenographer that he wished said Butterfield to attend to said case and look after it for deponent. It is disclosed by the affidavit of said Butterfield that he did not receive the copy of said summons and complaint, and had no knowledge of the existence of the action until about February 15, 1909. The stenographer made an affidavit that she had no recollection of the summons and complaint being delivered to her for the said M. A. Butterfield, who was her father. Said Williams further states in his affidavit

"that he supposed said attorney had taken whatever steps might be necessary to protect the interest of the defendant, and to interpose an answer; that afterwards he was surprised to hear that judgment had been entered against defendant by default; that deponent made various attempts to settle said matter out of court, and finally on February 16, 1909, inquired of said Butterfield, why he did not make a defense in said case, and was informed by him that he never saw the summons and complaint, and did not know anything about their being left in his office or that his services in the matter had been requested. Said papers could not be found until March 12, 1909, when they were found fallen over behind a desk in the said office."

Subsequently the testimony of said Williams was taken on the part of the plaintiff by a referee appointed by the court, in which, among other things, he stated as follows:

"Q. Did you ever prior to the 16th day of February, 1909, consult any attorney with reference to this case?

A. I first consulted an attorney on or about that time.

Q. When did you first learn that a judgment had been entered against the defendant in this action? A. The first I heard of it was when the sheriff called my attention to it and I do not remember the exact date, it was some time prior to January 1, 1909. ...

Q. I will ask you whether or not you spoke to M. A. Butterfield concerning these papers from the time they were served on you until about the 16th of February, 1909?

A. No.

Q. How far is the office of M. A. Butterfield from the Security State Bank?

A. One block.

Q. Were you ever in the office of M. A. Butterfield after the time you claim to have left these papers there and about the 16th of February, 1909?

A. Yes, I was.

Q. Did you not see and talk frequently with said M. A. Butterfield between those dates?

A. Yes, sir.

Q. But you never said anything to him about this case?

A. No, not until about the middle of February, because I thought he would attend to it anyhow.

Q. When did you first explain to M. A. Butterfield the facts of this case?

A. Some time in March."

It will thus be seen that the summons and complaint were personally served on the defendant September 22, 1908; that judgment was taken on October 27, 1908; that on November 14th the judgment was entered of record, and on the same day an execution issued; that no motion was made to vacate or set aside the judgment until about the 16th of March, 1909, and that the case was first called to the attention of the attorney of the bank on or about February 16, 1909. The only excuse offered for this long delay from October 27, 1908, to the middle of March, 1909, in making the motion, was that there were negotiations pending for a settlement of the case out of court, but this excuse, in our opinion, is not such as to justify the delay oh the part of the defendant in its application for a vacation of the judgment, and for leave to answer, and especially is this so in view of the fact that the attorney for the defendant was...