Rosebud Lumber Co. v. Serr

• Decision Date: 20 October 1908
• Citation: 22 S.D. 389,117 N.W. 1042
• Parties: ROSEBUD LUMBER COMPANY, Plaintiff and appellant, v. PETER SERR, Defendant and respondent.
• Court: South Dakota Supreme Court

22 S.D. 389

117 N.W. 1042

ROSEBUD LUMBER COMPANY, Plaintiff and appellant,

v.

PETER SERR, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Gregory County, SD Hon. E. G. Smith, Judge Affirmed W. J. Hooper Attorneys for appellant. Charles A. Davis Attorneys for respondent. Opinion filed October 20, 1908

CORSON, J.

This is an appeal by the plaintiff from an order vacating and setting aside a judgment entered against the defendant, and granting him leave to file an answer in the action. It is disclosed by the record that the summons and complaint in this action were served upon the plaintiff on April 22, 1907, and, that no answer being served or filed therein by the defendant, judgment was entered against him on June 22, 1907. It further appears from the record that on July 1, 1907, the defendant procured an order upon the plaintiff to show cause why the default judgment entered in the action should not be set aside, and the defendant permitted to plead therein. This order to show cause was based upon an affidavit of Charles A. Davis, attorney for the defendant, and the main ground upon which the motion was made seems to have been that the complaint was insufficient to sustain the judgment. For various reasons set out in the record, this order to show cause was not taken up for hearing until on or about October I, 1907, and that, after the argument of the case, the application was withdrawn by leave of the court; that on November 12, 1907, another application was made to vacate the judgment and the time fixed for hearing was the 18th day of November, 1907. The latter order to show cause was made upon the following grounds: (1) That the complaint served and filed in said action fails to state facts sufficient in law to constitute a cause of action against the defendant; (2) that the defendant is entitled to relief from the judgment entered against him through his mistake, inadvertence, and excusable neglect. This order to show cause was based upon the affidavit of the defendant, Peter Serr, and his attorney, Charles A. Davis, and upon a verified proposed answer annexed thereto.

It appears from the affidavit of the defendant that he is of foreign birth, and has not had any experience with legal matters, and believed that all that was necessary for him to do was to secure counsel and appear at the next term of court, which he understood was to convene at Fairfax on the 25th day of June, 1907; that affiant on or about the 12th day of June, 1907, went to Bonesteel to consult with Mr. Hooper, an attorney at law; that he called at the office, but did not find him there, but did find one Alexander in charge of said office; that said Alexander advised affiant that said Hooper would not return to Bonesteel until the following Friday; that affiant telephoned to Mr. Alexander the following Saturday, and at that time Mr. Alexander informed affiant that said Hooper had not returned, but for affiant to send the summons and complaint to him, and that he would send them to said Hooper; that, when Mr. Alexander requested affiant over the telephone to send the summons and complaint to him, affiant knew that the court would soon convene, and he was afraid to wait any longer for Mr. Hooper; that affiant then employed Charles A. Davis, an attorney at law at Fairfax, who at once advised him to forward the summons and complaint to him; that affiant forwarded said summons and complaint by the next mail to said Davis; that he has fairly and fully stated the case to his said attorney, and was advised by him that he, the defendant, had a good, valid, and substantial defense upon the merits and the whole thereof. The statements made by the defendant in his affidavit as to the employment of Mr. Davis as his attorney and the time of such employment is fully corroborated by Mr. Davis. Several affidavits were served and filed on the part of the plaintiff in resisting the defendant’s motion, but they do not materially controvert the statements made by the defendant except as to the defendant’s having long been a resident of this state, and, though of German descent, speaks and writes the English language. It is quite apparent from the affidavits in the case that the defendant took no steps to employ an attorney until about the time the plaintiff was entitled to a default judgment, to wit, on the 22d day of May, 1907; but, as we have seen from his affidavit, the defendant was of foreign descent, and not familiar with the methods of commencing actions in our courts, and had had no experience with legal proceedings, and believed that...