Warder v. Patterson

• Citation: 6 Dak. 83,50 N.W. 484
• Court: Supreme Court of South Dakota
• Decision Date: 31 May 1888
• Parties: Warder et al. v. Patterson et al.

50 N.W. 484

6 Dak. 83

Warder et al.

v.Patterson et al.

Supreme Court of the Territory of Dakota.

May Term, 1888.

Appeal from district court, Lake county; C. S. Palmer, Judge. Affirmed.

Action by Benjamin H. Warder and others against H. J. Patterson and John H. Birdsall. Judgment by default for plaintiffs was set aside on defendants' motion. Plaintiffs appeal.

The action was begun on January 28, 1887, and on February 12 a demurrer to the complaint was filed, and at the June term, by agreement, the demurrer was withdrawn, and leave given to plaintiff to file an amended complaint within 60 days, and to defendant to file answer within 60 days after service thereof. On July 8th plaintiff served on defendant's attorneys the amended complaint. On September 16th, on an ex parte application of defendant's attorneys, Hon. C. S. Palmer, judge of the fourth judicial district court, granted an order extending the time to answer till October 1. On September 26th, this judge being absent from the territory, the Hon. James Spencer, on application by plaintiff's attorneys, rendered judgment by default against defendants. On December 10th Hon. C. S. Palmer granted an order setting aside the judgment. Code Civil Proc. Dak. § 143, provides that “the court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding,” etc.

F. L. Soper, for appellants. Wm. McGrath, for respondents.

PER CURIAM.

The judgment of the court below is affirmed. The court holds that the order of the judge enlarging the time to answer after the statutory period had elapsed, while irregularly made, and perhaps open to a motion to be set aside, was yet, in effect, a granting of time, and binding upon appellants; and the judgment by default obtained before another judge during the pendency of such order was properly set aside on motion by the judge who granted the leave to answer, and appellants ought not to complain that it was done without terms. All concur.