Griswold Linseed Oil Co. v. Lee

Citations

• 1 S.D. 531
• 47 N.W. 955
• 1891 S.D. LEXIS 57

Syllabus

<p>1. On the hearing of an application to set aside a default and judgment, and for leave to serve an answer, the evidence should be confined to the question whether the judgment has been taken through the mistake, inadvertence, surprise, or excusable neglect of defendant. The applicant is not required to make more than such a prima facie showing on the merits as arises from his own affidavits, and affidavits to eontravert his affidavit of merits are irrelevant, and inadmissible.</p> <p>2. The provisions of Section 4939, Oomp. Laws, conferring upon courts the power to “relieve a party from a judgment * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect,” are liberal in their terms, remedial in their character, and were . designed to afford -parties a simple, speedy, and efficient relief in a most worthy class of cases, and this power should be exercised by courts in the same liberal spirit in which they were desig'ned, in furtherance of justice, and in order that cases may be tried and disposed of upon their merits.</p> <p>3. When, therefore, a party makes a showing of such mistake, inadvertence, surprise, or excusable neglect, applies promptly for relief after he has notice of the judgment, shows by his affidavit of merits that prima facie he has a defense, and that he makes the application in good faith a court should not hesitate to set aside the default and allow him to serve an answer upon such terms as may be just under all the circumstances of the case.</p> <p>4. This court recognizes the rule that, on applications for relief under the section referred to, much must be left to the sound judicial discretion of the court to which applications are made; but it holds in this case the defendant was entitled, under the showing made by him, to the relief asked for, and reverses the order of the court below denying defendant such relief.</p> <p>5. Where relief is granted, a court, in addition to costs, may impose as terms that the