Parszyk v. Mach

CourtSupreme Court of South Dakota
Writing for the CourtFULLER, J.
Citation10 S.D. 555,74 N.W. 1027
Decision Date05 April 1898
PartiesJOSEPH PARSZYK, Plaintiff and appellant, v. ANNIE MACH, Defendant and respondent.
10 S.D. 555
74 N.W. 1027

JOSEPH PARSZYK,
Plaintiff and appellant,
v.
ANNIE MACH,
Defendant and respondent.


South Dakota Supreme Court
Appeal from Circuit Court, Yankton County, SD
Hon. E. G. Smith, Judge
Affirmed

Price & Slama
Attorneys for appellant.

French & Orvis, Yankton, SD
Attorneys for respondent.

Opinion filed April 5, 1898

[10 SD 556]

FULLER, J.


This equitable action to cancel a warranty deed, which it is alleged defendant, by undue influence, obtained from plaintiff while the latter, by reason of insanity, was incapable of transacting any business, resulted on the 23d day of January, 1897, in a default judgment based upon findings of fact and conclusions of law favorable to plaintiff. Thereafter a motion, returnable at 10 o'clock, a. m., February 6, 1897, was made by the defendant to vacate and set aside such findings of

[10 SD 557]

fact, conclusions of law, and judgment, for the following reasons:

“(1) That the complaint in said action does not state facts sufficient to constitute a cause of action;

(2) for the reason that it appears from the pleadings and proof of service in said action that judgment was rendered by default, and the judgment contains matters of relief not prayed for in the prayer for judgment in the said complaint, and to which plaintiff was not entitled under said complaint.”

Upon a proposed verified answer, the grounds above stated, and the further ground of “mistaken and excusable neglect,” as shown by her affidavit, the defendant made another motion, returnable on the afternoon of the same day (February 6, 1897), asking the court for the identical relief above demanded, and to be allowed to serve and file an answer to plaintiffs complaint. After hearing argument of counsel for and against the first motion, the court overruled the same, without specifying any reasons therefor; and, for the purpose of avoiding the effect of language inadvertently employed by counsel who prepared the order, another order overruling said motion was made and entered on the 23d day of February, 1897, which provides

“that said motion be, and the same is, denied, for the reason that no answer to the plaintiff’s complaint was served with said motion papers, and for the further reason the defendant did not ask permission to either answer or demur to plaintiff’s complaint. This order is without prejudice to defendants right to a decision on the second motion in said case now pending in this court.”

In opposition to the second motion, which was brought on for hearing immediately after entry of the foregoing order, affidavits of numerous persons were read, traversing the affidavit of defendant, upon which her counsel wholly relied to show that the judgment by default was due to her mistake, inadvertence, and excusable neglect; and...

To continue reading

Request your trial
7 practice notes
  • Ackerman v. Burgard, Nos. 9883
    • United States
    • South Dakota Supreme Court
    • April 25, 1961
    ...National Ben. Ass'n Inc., of Mitchell, 65 S.D. 260, 273 N.W. 7; Johnson v. Dakota Nat. Bank, 49 S.D. 381, 207 N.W. 217; Parszyk v. Mach, 10 S.D. 555, 74 N.W. 1027; and Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 47 N.W. As so modified the orders appealed from are affirmed. SMITH, P. J., an......
  • D'Eliza v. Ritondo
    • United States
    • New York Court of Appeals
    • March 6, 1923
    ...defense succeeds a new judgment takes the place of the original.’ See, also, Dulle v. Lally, 167 Ill. 485, 47 N. E. 753;Parszyk v. Mach, 10 S. D. 555, 74 N. W. 1027;Huston Township Ins. Co. v. Beale, 110 Pa. 321, 1 Atl. 926;Smith v. DeLanty, 11 Wash. 386, 39 Pac. 638. The effect of an order......
  • Lee v. Luckasen, No. 4886.
    • United States
    • United States State Supreme Court of North Dakota
    • June 29, 1925
    ...void. Re Taylor, 7 S. D. 382 [64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843]. Our conclusion is that the judgment in Parszyk v. Mach (10 S. D. 555, 74 N. W. 1027) was erroneous, but not void. * * * This view is supported by abundant authority and is consonant with sound reason.” Defend......
  • Boshart v. Nat'l Ben. Ass'n, Inc., No. 7939.
    • United States
    • Supreme Court of South Dakota
    • April 28, 1937
    ...stand as indemnity to the plaintiff. See Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 47 N.W. 955, 36 Am.St.Rep. 761;Parszyk v. Mach, 10 S.D. 555, 74 N.W. 1027. But it cannot be contended with any show of reason that the judgment was in effect opened to permit a hearing on the merits, and, ......
  • Request a trial to view additional results
7 cases
  • Ackerman v. Burgard, Nos. 9883
    • United States
    • South Dakota Supreme Court
    • April 25, 1961
    ...National Ben. Ass'n Inc., of Mitchell, 65 S.D. 260, 273 N.W. 7; Johnson v. Dakota Nat. Bank, 49 S.D. 381, 207 N.W. 217; Parszyk v. Mach, 10 S.D. 555, 74 N.W. 1027; and Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 47 N.W. As so modified the orders appealed from are affirmed. SMITH, P. J., an......
  • D'Eliza v. Ritondo
    • United States
    • New York Court of Appeals
    • March 6, 1923
    ...defense succeeds a new judgment takes the place of the original.’ See, also, Dulle v. Lally, 167 Ill. 485, 47 N. E. 753;Parszyk v. Mach, 10 S. D. 555, 74 N. W. 1027;Huston Township Ins. Co. v. Beale, 110 Pa. 321, 1 Atl. 926;Smith v. DeLanty, 11 Wash. 386, 39 Pac. 638. The effect of an order......
  • Lee v. Luckasen, No. 4886.
    • United States
    • United States State Supreme Court of North Dakota
    • June 29, 1925
    ...void. Re Taylor, 7 S. D. 382 [64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843]. Our conclusion is that the judgment in Parszyk v. Mach (10 S. D. 555, 74 N. W. 1027) was erroneous, but not void. * * * This view is supported by abundant authority and is consonant with sound reason.” Defend......
  • Boshart v. Nat'l Ben. Ass'n, Inc., No. 7939.
    • United States
    • Supreme Court of South Dakota
    • April 28, 1937
    ...stand as indemnity to the plaintiff. See Griswold Linseed Oil Co. v. Lee, 1 S.D. 531, 47 N.W. 955, 36 Am.St.Rep. 761;Parszyk v. Mach, 10 S.D. 555, 74 N.W. 1027. But it cannot be contended with any show of reason that the judgment was in effect opened to permit a hearing on the merits, and, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT