Pettigrew v. City of Sioux Falls
| Decision Date | 01 September 1894 |
| Citation | 60 N.W. 27,5 S.D. 646 |
| Parties | PETTIGREW et al. v. CITY OF SIOUX FALLS et al. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. To justify a court in setting aside a judgment on the ground of mistake, inadvertence, or excusable neglect, under section 4939, Comp. Laws, two things must appear, to wit, the mistake, inadvertence, or excusable neglect, and a probable meritorious defense on the part of the defendant asking such relief.
2. An order, in an application under that section, refusing to set aside a judgment entered upon a written stipulation of the parties, will not be reversed where the record presents neither the answer of defendant, nor suggests its contents nor contains an affidavit of merits.
3. An affidavit of merits by an attorney must show that he is acquainted with the facts in the case.
Appeal from circuit court, Minnehaha county; J. W. Jones, Judge.
Action by Luella B. Pettigrew and Alma J. Pettigrew against the city of Sioux Falls, S. D., and George B. Sammons, treasurer of the city of Sioux Falls, to enjoin the collection of a reassessment against certain lots on account of street improvements, in which there was a judgment for plaintiffs. From an order denying a motion to vacate such judgment defendants appeal. Affirmed.
J. H Gates, for appellants. Winsor & Kittredge, for respondents.
This is an appeal from the refusal of the circuit court to vacate a judgment against appellants, on the ground that the same was taken against them through their mistake or excusable neglect. The action in which the judgment sought to be set aside was rendered was to enjoin the collection of a reassessment against lots of respondents in Sioux Falls on account of street improvements. The case being at issue upon complaint and answer, and referred to a referee for trial, the parties, through their attorneys, made a written stipulation that the referee should find and report that the facts alleged in the complaint were true, and that plaintiffs were entitled to judgment for the relief asked, and that the court should confirm such report, and give the plaintiffs judgment accordingly. This was done, and judgment (which bears no date) was filed August 9, 1893. December 11th following, the defendants' attorney, upon the files and records and affidavits, moved the court upon notice to vacate such judgment "upon the ground of mistake, inadvertence, or excusable neglect," as provided in section 4939, Comp. Laws. The motion was resisted upon counter affidavits, and was denied by the court.
To justify the court in setting aside a judgment under this section, two things must concur,--the mistake, inadvertence or excusable neglect, and a probable meritorious defense upon the part of the defendants asking such relief. We have several times declared our opinion that a trial court should exercise its discretion liberally under this statute, but the conditions named are precedent to the exercise of any discretion. In this case the trial court was justified in refusing this application if it believed there was no such mistake or excusable neglect as the statute contemplated, or if it believed that the answer of defendants did not set up any defense. Either conclusion would justify and require the decision made. As to the first ground, the facts are before us, and we might examine them; but if we should conclude that the judgment was rendered through a mistake, within the meaning of that section, there would still be left the further inquiry, did the defendants show that they had a defense? The presumption is in favor of the correctness of the decision of the trial court. To make it appear that it was wrong, appellants must not only show to us that the judgment was the result of mistake, but that there was a probable defense to it, because, for aught this court can know, the trial court put its decision upon the latter ground. If it did, we could not reverse its...
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