Weber v. Tschetter

Citations

• 1 S.D. 205
• 46 N.W. 201
• 1890 S.D. LEXIS 28

Syllabus

<p>1. Where an issue is formally presented to the court, and determined upon a full hearing of both sides, the same being subject to review by appeal, such determination is final and conclusive as to all matters necessarily embraced in such litigation, without regard to the form of the proceeding, whether by action or motion.</p> <p>2. But an order denying a motion to vacate a judgment on the ground, principally, that the defendant had not been served with summons, is no bar to a motion under Section 4939, Comp. Laws, for relief from such judgment on the ground of mistake, inadvertence, surprise, or excusable neg'lect.</p> <p>3. An order vacating a judgment as to the moving defendant, and letting him in to defend, is appealable under Subdivision 2, \\ 5236, being an order affecting a substantial right, upon a summary application in an action after judgment.</p> <p>4. Whether in any case the notice contemplated by said Section 4939 may be less than actual notice is not determined; but held, in this case, that the proofs show that the motion was made within a year after defendant had either actual or constructive notice of the judgment, and was therefore in time.</p> <p>5. The assignee of a judgment stands in no better position than the original plaintiff', and the judgment ma.y be vacated in the assignee’s hands for the same reasons that would justify such vacation in the hands of the plaintiff.</p> <p>6. Upon the. proofs on the hearing of the motion below, held that there was no abuse of discretion in granting the order appealed from.</p> <p>(Syllabus by the court.</p>