Johnson v. Johnson

210 N.W. 155, 50 S.D. 341, 1926 S.D. LEXIS 372

Opinion

BURCH, C.

This is an appeal from an order vacating a default judgment. The record shows a sufficient affidavit of merits coupled with a sufficient answer, and the only question meriting consideration is the sufficiency of the showing as to excusable neglect.

Defendant’s showing was to the effect that he was foreign born, had never had any experience in court proceedings, and thought the case would come on at a term of the court when and where he could be heard. While the showing is not strong, it is sufficient; the facts being very similar to the facts in the case of Rosebud Lumber Co. v. Serr, 22 S. D. 389, 117 N. W. 1042, which were held sufficient by this court, and wherein it was held that a much stronger case of abuse of discretion must ■be made where the court has granted a motion than when the motion has 'been denied1. Much must be left to the sound judicial discretion of the trial judge to whom the application is made, and the applicant is not required to make more than a prima facie showing on the merits. Griswold Linseed Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am. St. Rep. 761. Defendant acted promptly, and the court vacated the judgment on terms.

The order appealed from- is affirmed.

DILLON, J., not sitting.