W. T. Rawleigh Co. v. Keely

220 N.W. 857, 53 S.D. 425, 1928 S.D. LEXIS 101

• Court: South Dakota Supreme Court
• Decided: August 18, 1928
• Docket: File No. 6140
• Status: Published

Opinion

BROWN, J.

Appeal from an order setting aside a default judgment and granting respondents leave to answer. Summons and complaint were served on respondents on January 24, 1925. On March 2d respondents attorney mailed to plaintiff’s attorneys a proposed answer, which was returned because not served in time. It was immediately remailed to plaintiff’s attorneys, and by them again returned because not served in time.

No further steps looking' to relief from the 'default were taken until July 10th, when respondents’ attorney served on plaintiff’s attorneys an affidavit and notice of motion to set aside the default judgment, which had been entered on June 12th. The affidavit was made by respondents’ attorney, and stated the reason for failure to answer in time to be that he was retained on behalf of all the defendants, that the defendants 'Carr and Olson had: not been served with summons and complaint, and he was- waiting until service was made upon all, so that one answer would- do- for all, and that he understood that the time for answering on- -behalf of respondents -did not expire until March 3d. No affidavit of merits was served.

Circuit Court 'Rule No-.-10 requires both an affidavit of merits and a -copy of the proposed! pleading to be served, on application to be relieved from a default judgment. The only language contained in the affidavit in this case relating to the defense or to the merits is this:

“Defendants 'have a goo-d and sufficient -defense to the complaint herein, as is fully sho-wn by the answer herewith, and as has been determined by the decision -of the Supreme Court involving this particular plaintiff in a suit on a contract identical with the one pleaded- in the complaint -herein.”

In Des Moines Mutual Hail & Cyclone Ins. Ass’n v. Clute, 35 S. D. 154, 151 N. W. 281, it is said that the rule contemplates that defendant shall make the affidavit, and, if circumstances exist in which the affidavit may properly 'be made by the attorney, it must affirmatively appear that the attorney is acquainted with the facts relied upon as a -defense. The statement in the affidavit- of defendants’ attorney which we have quoted contains much less of the necessary requirements o-f an affidavit o-f merits than- is contained in the affidavits in- the Clute Case and in Larson v. M. Rumely Cb., 35 S. D. 542, 143 N. W. 301, in both of which cases an order relieving a party from default was reversed for lack of a sufficient affidavit of merits.

On the authority of these cases, the order appealed from is reversed

BrtJRlCH, P. J., and POLLEY and S'HERWO-OD, JJ., concur. CAMPBELL, J., not participating.