Leech v. Brady

South Dakota Supreme Court

Leech v. Brady

231 N.W. 936, 57 S.D. 271, 1930 S.D. LEXIS 103

CourtSouth Dakota Supreme Court

DecidedSeptember 2, 1930

DocketFile No. 6756

StatusPublished

This text of 231 N.W. 936 (Leech v. Brady) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leech v. Brady, 231 N.W. 936, 57 S.D. 271, 1930 S.D. LEXIS 103 (S.D. 1930).

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Opinion

BROW'N, P. J.

Appeal from an order opening default judgment and permitting defendant to answer. The affidavit of defendant on the motion to open the default alleged that at the time of the service of the summons and! complaint he was ill with chronic stomach trouble aggravated by an attack of the “flu” and was thereby rendered physically unable to attend to any business; that, when he was able to get up, he at once came to the office of J. M. Berry, the attorney who- appears for him in this appeal, with the papers which had been served upon him and desired Berry to answer. This was only 3 days after default judgment had been taken. In answer to his attorney’s inquiry as to when the papers had been served upon him, defendant said he did not know, but thought it was less than 30 days ago. On examination, however, the attorney found that service had been- made 35 days before, and application to the court would have to be made for leave to answer. [272]*272The default judgment was taken for the sum of $4,477.45 on April 12, 1928, for a deficiency on a note secured by a mortgage. The note was not due until September 13, 1934, and bore interest at the rate of 5 Per cent per annum. No separate formal affidavit of merits was made by defendant on the application, but bis affidavit contained statements showing that he had stated the facts to his attorney and that he had a defense arising from the fact that the action was commenced about 6^ years before the debt was due, also showing that the judgment taken, which, as a matter of law, draws interest at the rate of 7 per cent, was exacting from defendant 2 per cent more than the contract rate, which during Oft. years would amount to about $550. This showed a good defense on the merits, and we are not prepared to say that the court abused its discretion in opening the default and permitting the defendant to answer under the circumstances of this case.

The order appealed from is affirmed.

POLLEY, SHERWOOD, CAMPBELL, and BURCH, JJ„ concur.

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BROW'N, P. J.

Appeal from an order opening default judgment and permitting defendant to answer. The affidavit of defendant on the motion to open the default alleged that at the time of the service of the summons and! complaint he was ill with chronic stomach trouble aggravated by an attack of the “flu” and was thereby rendered physically unable to attend to any business; that, when he was able to get up, he at once came to the office of J. M. Berry, the attorney who- appears for him in this appeal, with the papers which had been served upon him and desired Berry to answer. This was only 3 days after default judgment had been taken. In answer to his attorney’s inquiry as to when the papers had been served upon him, defendant said he did not know, but thought it was less than 30 days ago. On examination, however, the attorney found that service had been- made 35 days before, and application to the court would have to be made for leave to answer. [272]*272The default judgment was taken for the sum of $4,477.45 on April 12, 1928, for a deficiency on a note secured by a mortgage. The note was not due until September 13, 1934, and bore interest at the rate of 5 Per cent per annum. No separate formal affidavit of merits was made by defendant on the application, but bis affidavit contained statements showing that he had stated the facts to his attorney and that he had a defense arising from the fact that the action was commenced about 6^ years before the debt was due, also showing that the judgment taken, which, as a matter of law, draws interest at the rate of 7 per cent, was exacting from defendant 2 per cent more than the contract rate, which during Oft. years would amount to about $550. This showed a good defense on the merits, and we are not prepared to say that the court abused its discretion in opening the default and permitting the defendant to answer under the circumstances of this case.

The order appealed from is affirmed.

POLLEY, SHERWOOD, CAMPBELL, and BURCH, JJ„ concur.

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Bluebook (online)

231 N.W. 936, 57 S.D. 271, 1930 S.D. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leech-v-brady-sd-1930.