Searles v. Christensen

Citations

• 5 S.D. 650
• 60 N.W. 29
• 1894 S.D. LEXIS 105

Syllabus

<p>1. Where, after judgment is rendered against a defendant, attorneys other than those of record appear for him, and, upon affidavit of such defendant, move the court to set aside such judgment on the ground of mistake or excusable neglect, no objection being made to the appearance of such attorneys, — it not appearing affirmatively that substitution was not made, and the court below fully considering the application on its merits, — an objection, made for the first time in this court, that such new attorneys could not and did not rightfully appear for defendant, and should not have been heard, will not be entertained.</p> <p>2. Where an abstract sets out such matter, not jurisdictional, as could only be gathered from a duly authenticated record, the abstract will be construed as claiming that the record was properly authenticated, and in the absence of any denial such facts will be considered by this court as admitted. Mercantile Co. v. Paris (S. D.) 58 N. W. 813, followed.</p> <p>3. The defendant, living in a county other than that in which the action was brought, being sued, immediately employed a regularly practicing attorney to represent him in the case. An unsuccessful attempt was made for a change of the place of trial. He then employed additional attorneys. An answer was prepared and served, which is fully set out in the affidavit. The case being set for trial at the January term, 1893, defendant appeared at the courthouse for the purpose of the trial, and was then and there informed by his senior attorney that the action against him was discontinued; that the plaintiff would take another case to the supreme court to test the question upon which defendant’s liability depended. Defendant, believing in the correctness of this information,- — no reason appearing why he should have doubted it, — returned to his home, and believed the case against him was discontinued until the following July, when he read in a newspaper reporting the court proceedings that judg