Whittaker v. Warren

• Decision Date: 12 June 1901
• Citation: 14 S.D. 611,86 N.W. 638
• Parties: THOMAS WHITTAKER, Plaintiff and appellant, v. EDSON C. WARREN, Defendant and respondent.
• Court: South Dakota Supreme Court

14 S.D. 611, 86 N.W. 638 (1901)

THOMAS WHITTAKER,

Plaintiff and appellant,

v.EDSON C. WARREN,

Defendant and respondent.

South Dakota Supreme Court

Appeal from County Court, Lawrence County, SD

Hon. William A. Rinehart, Judge

Affirmed

Temple & McLaughlin

Attorneys for appellant.

James P. Wilson

Attorneys for respondent.

Opinion filed June 12, 1901

CORSON, J.

This is an appeal by the plaintiff from an order made and entered on the 31st day of December, 1898, in favor of the defendant, vacating and setting aside the judgment entered in the action, the execution and sale of property made under the same, and dismissing the action. The order was made upon an affidavit on the part of the defendant, no rebuttal affidavit having been filed. The plaintiff and appellant relies for a reversal of the order upon the following grounds:

(1) That an order was made in March, 1897, denying defendant’s application to vacate and set aside the judgment upon substantially the same grounds as those stated in the motion made, resulting in the order appealed from, which order made at that time was an appealable order, and was therefore res adjudicata in the present application to vacate the judgment upon the same grounds;

(2) that the showing made on the last motion is not sufficient, in any event, to entitle the defendant to the relief demanded (3) that the order appealed from was not made within one year after the defendant had notice of the entry of judgment.

The facts may be briefly stated as follows: An action was instituted by the plaintiff against the defendant August 15, 1895, by the service of a summons; and judgment was rendered thereon in November, 1895, and filed on December 4, 1896. An execution was issued on this judgment, and a levy made upon real property; and such proceedings were had thereunder that in March, 1897, the real property was sold for the full amount of the judgment, and hid in by the plaintiff, and certificate of sale issued thereon. In March, 1897, the defendant made a motion to vacate and set aside the said judgment, which upon the hearing was denied, and from the order denying that motion no appeal has ever been taken. In March, 1898, an application having been made for an order confirming said sale, the defendant filed objections to the confirmation of the sale, and moved the court to vacate and set aside the judgment and dismiss the action, and to set aside the sale and all proceedings had thereunder; and the same judge who made the order in March, 1897, refusing to vacate and set aside the judgment, made and entered the order appealed from, now under consideration.

The appellant contends that the order of March, 1897, concludes the parties, and estops the defendants from again litigating the question settled on that motion, and cites the decisions of this court in Weber v. Tschetter, 1 SD 205, 46 N.W. 201 (1890), and Hall v. Harris, 1 SD 279, 46 N.W. 931, 36 Am St Rep 730 (1890), as sustaining his position. In the former case this court said:

“We think that where an issue of fact is distinctly and formally presented to the court for determination, as a means of fixing the legal rights of the parties, the supporting evidence on both sides duly considered, and from which determination either party may appeal, the decision of the court upon such issue ought to be held conclusive and final without regard to the form in which such action is presented—whether by action or motion; the important matter being that the issue be well defined, so as to preclude doubt as to what issue was before the court; that it be fully heard and litigated, each side having an opportunity to be heard; and that the court should judicially pass upon and decide it. This being done, the determination as to the facts and rights involved should be final.”

This must be regarded as the law in this jurisdiction; but it will be noticed that, in order that such a determination may be held to conclude the parties, issues of fact must be distinctly and formally presented to the court with the supporting evidence upon both sides, and duly considered. It will he noticed, further, that the issues must be well defined, so as to preclude doubt as to what question was before the court, and they must be fully heard and litigated. With this view of the law we will proceed to examine the questions presented by the record in this case.

Nothing is presented by this record relating to the first motion, made in March, 1897, except the notice of motion, affidavit of the defendant, and the order of the court. So far as the record discloses, no issue of fact was presented or determined on that motion, and we may reasonably assume from the record that the motion was heard and decided entirely upon the defendant’s affidavit; and, from an examination of that affidavit, we may reasonably presume that the motion was then decided upon the ground that the affidavit did not state facts sufficient to entitle the defendant to an order in his favor. It is true, the motion in March, 1897, was made upon substantially the same grounds as the present motion, as far as relates to the judgment. But the affidavits on the two motions are essentially different. The affidavit made in 1897, states that the summons in the action was served upon the defendant on or about August 5, 1895; that on or about September 4, 1895, the defendant called upon the attorney for the defendant and notified him that he appeared personally in the action, and demanded a copy of the complaint; that the attorney accepted the personal appearance of the defendant, and indorsed upon the back of the summons the following: “The personal appearance of E. C. Warren is accepted; the complaint to be served upon him personally.” This was signed by the attorney for the...