Moody v. Lambert

• Decision Date: 07 December 1904
• Citation: 18 S.D. 572,101 N.W. 717
• Parties: L. W. MOODY, Plaintiff and appellant, v. J. L. LAMBERT, Potter County Treasurer, et al. Defendant and respondent.
• Court: South Dakota Supreme Court

18 S.D. 572

101 N.W. 717

L. W. MOODY, Plaintiff and appellant, v. J. L. LAMBERT,

Potter County Treasurer, et al.

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Potter County, SD

Hon. Loring E. Gaffy, Judge

Affirmed

A. L. Ellis, A. Gunderson

Murtha & O'Keefe

Attorneys for appellant.

Robert B. Fisk

Attorneys for respondent.

Opinion filed December 7, 1904

FULLER, J.

Pursuant to notice given in open court at the commencement of a trial term convening on the 21st day of October, 1902, counsel for plaintiff moved to strike this cause from the calendar for reasons stated in substance as follows: That the defendants’ notice of trial was served before issue was joined, and too late to entitle the cause to be placed upon such calendar; that the note of issue furnished the clerk “nowhere states what the issue is that is to be tried;” and that the same is vitally defective in certain other particulars therein specified, but which need not be mentioned here, because the case was entered upon the calendar for trial in proper order, and plaintiff was in no manner prejudiced by the failure of the note of issue to conform to the requirments of the statute. Such paper being merely for the guidance of the clerk, defects as to its form furnish no ground for striking from the calendar a cause that has been correctly entered thereon. Section 246, Rev. Code Civ. Proc.; Kennedy v. Kennedy, 18 NJ Law 51.

After overruling the foregoing motion, the court directed counsel for the plaintiff to proceed to trial, and they refused to do so on the sole ground that “no note of issue or notice of trial has been served or filed.” There upon counsel for the defendants, who was ready to try the case, and alone had noticed the same for trial and furnished the note of issue, moved to dismiss the action for want of prosecution; and the sole contention of plaintiff, who appeals from judgment accordingly entered, is that the case should have been stricken from the calendar for reasons mentioned in the motion presented by his counsel.

According to the uncontroverted record, issue was joined by the answer of defendant Fisk, served on counsel for plaintiff May 3, 1902; but Mr. Lambert, a nominal defendant, as county treasurer, suffered judgment by default to be entered against him, but relief therefrom was obtained by an order which, omitting the caption, is as follows:

“This cause coming on to be heard upon the application of the defendant, J. L. Lambert, as the treasurer of Potter county, South Dakota, to be relieved of his default herein, an on his motion to be allowed to answer herein, under the affidavits of said J. L. Lambert and of Robt. B Fisk, his attorney, thereto attached, and herein on September 3, 1902, duly and regularly served upon A. L. Ellis, attorney for said plaintiff, and said A. L....