O'Neill v. Jones

• Decision Date: 10 November 1909
• Parties: HARRY E. O'NEILL, Plaintiff and respondent, v. JONAH JONES, Defendant and appellant.
• Court: South Dakota Supreme Court

24 S.D. 79, 123 N.W. 495 (1909)

HARRY E. O'NEILL, Plaintiff and respondent v JONAH JONES,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Joe Kirby

Attorney for appellant.

Aikens & Judge

Attorneys for respondent.

Opinion filed Nov. 10, 1909

WHITING, J.

This is an action brought in the trial court to recover upon two certain promissory notes given by a partnership of which the defendant and appellant herein was a member, and which said notes were given to a machine company, and afterwards assigned to the plaintiff herein. The defendant appeared by counsel and accepted service of the summons and complaint on May 8, 1906, and on May 22, 1906, the defendant, through his said counsel, interposed an answer, which answer contained a general denial, coupled with an express denial of those allegations of the complaint which related to the giving of the notes and to the consideration for same. Nothing further appears to have been done by defendant, until, on August 25th, the defendant, through his attorney, moved the court for an order allowing him to serve an amended answer, which motion was based upon an affidavit of the attorney for the defendant with the proposed amended answer attached thereto. This motion being resisted, the court, after consideration, denied same, and this appeal is from the order denying such motion to serve amended answer.

From the affidavit submitted oh behalf of the appellant, it appears that the summons and complaint were served upon the attorney for appellant May 8, 1906; that the appellant was absent from the state and remained absent until after August 25, 1906; that upon such service of summons the attorney for the appellant communicated with appellant and received authority to appear for him; that he answered herein on May 22, 1906, intending to examine into the case more fully later on, and, if necessary, interpose an amended answer; that there had existed for years past a custom between the law office of affiant and that of plaintiff's attorney, under which custom they had accepted service of pleadings even if served after time, unless such delayed service would jeopardize the trial at some particular term of court; that, when the summons and complaint were presented to affiant, he was engaged in the trial of a case in circuit court, and was subsequently engaged in trial of other matters until August 17, 1906, which was the first time or opportunity he had in which to examine into the merits of the above-entitled action. Affiant further swore that, if it had not been for the above-mentioned custom, he would have dropped other business and attended to amended answer at earlier date, but that he relied on the custom and expected that plaintiff's attorney would admit service upon any amended pleadings at a later date; that upon August 17, 1906, and upon examining into this case, affiant was informed of and found for the first time the existence of the facts that are set forth in the further and separate defense contained in the proposed amended answer; that affiant prepared such amended answer, and tendered the same to plaintiff's attorney and service of same was rejected; that no term of court will be missed, and there will be no delay by the service of such amended answer; that affiant had knowledge of the matters set forth in such proposed amended answer, and made the affidavit owing to absence of his client; that affiant had as much knowledge of the matters pleaded as had his client. The further and separate defense pleaded in such proposed amended answer was to the effect that the payee named in the notes was a foreign corporation which at the time the notes were given had not complied with the laws of this state requiring the appointment of a local agent for service of summons, and that the plaintiff received the motes with full knowledge of such fact. No affidavit was offered in answer to the affidavit of defendant, but the respondent contends that such proposed amended answer does not set forth a meritorious defense, and that for that reason the court was justified in rejecting the same, and the respondent further urges that it plainly appears that appellant did not believe that he had any defense until his...