Brettell v. Deffebach

Citations

• 6 S.D. 21
• 60 N.W. 167
• 1894 S.D. LEXIS 125

Syllabus

<p>1. While, as a general rule, none but parties to a judgment can have it set aside, a real party in interest alone prejudiced by a judgment rendered by default in an action to which he was not made a party has a standing in court that entitles him to move to have such judgment vacated ■and set aside, on the ground that there was no service of the summons sufficient to give the court jurisdiction of the person of the nominal defendants, and that the case was not prosecuted with reasonable diligence. i</p> <p>2. Where the only proof that a summons purporting' to have been lost or destroyed was ever served upon a defendant, who is in default, consists of an affidavit made by the plaintiff in the action, in which he states that said summons was served upon defendant personally by one H. more than seven years and six months prior to the making of such affidavit, and there is nothing in the affidavit nor'record showing affiant’s means of knowledge, or relating in any manner to the particulars of the loss or destruction of the summons, or excusing the delay in making a return thereon, or explaining why said proof of service was not originally made by the affidavit of the party who served the summons, held, to be secondary in its nature, without proper foundation as to admissibility, uncertain, if not hearsay, in its character, and withal ineffectual as proof of such service, and therefore insufficient to confer upon a court jurisdiction of the person of the defendant. Corson, P. J., dissenting.</p> <p>3. In an action against joint claimants and purported owners of real estate to obtain the exclusive possession of and title thereto, a judgment by default, granting such relief, and quieting the title to such property in plaintiff as against the defendants jointly, one of whom was never served nor appeared in the action, is erroneous, and should be set aside on motion.</p> <p>(Syllabus by the Court.</p>