Weber v. Tschetter
| Decision Date | 25 June 1890 |
| Citation | 46 N.W. 201,1 S.D. 205 |
| Parties | Weber et al. v. Tschetter et al. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where an issue is formally presented to the court, and determined upon a full hearing of both sides, the same being subject to review by appeal, such determination is final and conclusive as to all matters necessarily embraced in such litigation, without regard to the form of the proceeding whether by action or motion.
2. But an order denying a motion to vacate a judgment on the ground principally, that the defendant had not been served with summons, is no bar to a motion under section 4939, Comp Laws, for relief from such judgment on the ground of mistake inadvertence, surprise, or excusable neglect.
3. An order vacating a judgment as to the moving defendant, and letting him in to defend, is appealable under subdivision 2, § 5236, being an order affecting a substantial right, upon a summary application in an action after judgment.
4. Whether in any case the notice contemplated by said section 4939 may be less than actual notice is not determined; but held, in this case, that the proofs show that the motion was made within a year after defendant had either actual or constructive notice of the judgment, and was therefore in time.
5. The assignee of a judgment stands in no better position than the original plaintiff, and the judgment may be vacated in the assignee's hands for the same reasons that would justify such vacation in the hands of the plaintiff.
6. Upon the proofs on the hearing of the motion below, held that there was no abuse of discretion in granting the order appealed from.
Appeal from circuit court, McCook county; FRANK R. AIKENS, Judge.
R. B. Tripp, for appellant Wetherby. N. J. Cramer, for respondent Wipf.
On the 24th day of March, 1885, in the district court of McCook county, Dak., judgment was taken in open court in favor of George W. Weber, plaintiff, and against Jacob Tschetter and Elias Wipf, defendants. The return of the sheriff of said McCook county showed that the summons was personally served upon said defendants by delivering to and leaving with each of them a true copy thereof. Mr. Wilson, an attorney of said court, gave notice of retainer to plaintiff's attorneys in said action, and that he appeared for defendants therein, demanding a copy of the complaint. Afterwards, upon affidavit of one of plaintiff's attorneys of the service of such complaint upon said Wilson more than 30 days prior thereto, and that no answer or demurrer had been received, and upon due notice to said attorney, Wilson, of the application, judgment was taken in said action against said defendants, as above stated. On the 24th day of December, 1884, and about the time of the commencement of the action, a warrant of attachment was issued in said action to the sheriff of said McCook county, who made return thereon that, as to defendant Wipf he had executed the same by levying upon certain lots in Bridgewater, in said McCook county, and by showing the original warrant of attachment to him, the said Wipf. The warrant of attachment was also issued to the sheriff of Hutchinson county, who made return that on the 27th day of December, 1884, he served the same by attaching certain real estate in said county as the property of said defendant Wipf, and that he (said Wipf) could not be found in his county. Notice of lis pendens was on the 26th day of December, 1884, filed and recorded in the proper office in said Hutchinson county as to the land so attached. On the 30th day of March, 1889, the judgment was, for a good and valuable consideration, paid by him, assigned to appellant Wetherby. On the 6th day of May, 1889, the said judgment, having never before been filed in the office of the clerk of the said district court, was so filed, and execution issued thereon. In July, 1889, defendant Wipf, the respondent herein, moved the said district court of McCook county "that the judgment, execution, attachment, and all proceedings had thereunder, should be set aside, and declared null and void, as to him, and that the notice of lis pendens filed in the office of the register of deeds of Hutchinson county be canceled." This motion was made upon, and supported by, the affidavit of Wipf and others; Wipf's affidavit stating, generally, that no service of the summons or any other paper in said action was ever made upon him, or left at his residence; that he never was a member of the firm of Tschetter & Co., as is alleged in the complaint in the action, nor in any manner interested in their business; that he never bought any goods of, nor became in any way indebted to, plaintiff; that, until shortly before the date of his said affidavit and motion, he had never heard of this case, nor of the attachment or judgment against him; that he could not read, write, or speak the English language in 1884 or 1885; and that he never employed, nor authorized the employment of, said Wilson to appear for him in the case, nor had he any knowledge of such appearance. The affidavit of the other defendant, Tschetter, corroborated Wipf's statement that he never was a member of, nor interested in, the firm of Tschetter & Co. or its business, and was not in any manner interested in the purchase of the goods on account of which the said action was brought; that, when he (Tschetter) was served with summons in said action, the sheriff left a summons with him for said Wipf, but did not serve the same on him personally; and that he (said affiant) did not inform said Wipf in regard to the summons, nor deliver the same to him. Other affidavits tended to confirm the statements of Wipf as to his interest in the partnership of Tschetter & Co.
Opposing the motion, Wetherby, the assignee of said judgment, and the appellant herein, presented his own affidavit stating that he purchased the same for a valuable cash consideration, relying upon the levy of the attachment, the notice of lis pendens, and other matters of record, believing the same made such judgment secure; that subsequently to the levy of said attachment, and the filing of said lis pendens, as appeared by the records of said court, several other judgments (particularly naming them) had been entered and docketed against said firm of Tschetter & Co., composed of Tschetter and respondent Wipf, on personal service of the summons on said Wipf by said sheriff; that, at the time of the contracting of the indebtedness represented by said judgment, it was generally regarded by merchant creditors that said Tschetter and said Wipf constituted the said firm of Tschetter & Co., and that, if the judgment were vacated, no other judgment could be collected against either of said defendants, because of their insolvency. The affidavit of Mathew White that he was the sheriff of McCook county, who made the service of the summons on said respondent Wipf; that the statements of the return were true; that his best recollection was that when he made such service upon said Wipf, he (said Wipf) was sitting on the counter in the store of said Tschetter & Co.; that he was well acquainted with said Wipf, and that, at about that time, he served a great many other papers on him as a member of the partnership of Tschetter & Co.; and that the statement in the affidavit of Tschetter as to his leaving a copy of the summons with him (Tschetter) for Wipf was wholly untrue. The affidavit of W. H. Baldwin, tending to corroborate Wetherby's affidavit that respondent Wipf was generally reputed to be a member of the firm of Tschetter & Co. The affidavit of H. H. Pierce, clerk of the court in which said judgment was rendered and filed, that there were several other judgments docketed in said court against said Tschetter and Wipf, in two of which the return on the summons showed personal service of the same on defendant Wipf; that the records of said court also showed that a case wherein Young et al. were plaintiffs, and the said Tschetter and Wipf, as partners under the firm name of Tschetter & Co., were defendants, was referred to Jones, referee; that as appeared from said referee's report, on file in said court, the said Tschetter testified, among other things, as follows:
Upon the hearing of said motion and application upon the foregoing proofs, the court denied the same, to which ruling defendant Wipf duly excepted; and a stay of proceedings was granted for the purpose of an appeal from the order by defendant Wipf. Afterwards, and on the 13th day of November, 1889, the said Wipf, on due notice, moved the circuit court of said county of McCook--it having, by the admission of the state of South Dakota, become the successor...
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