Whittaker v. Warren

Citations

• 14 S.D. 611
• 86 N.W. 638
• 1901 S.D. LEXIS 65

Syllabus

<p>1. Where a motion, to set aside a judgment is heard and determined on defendant’s affidavit, which does not state facts sufficient to justify granting tbe motion, tbe order made thereon is not an adjudication which will preclude a subsequent motion for such relief based on sufficient grounds, since, though such order is appealable, there were no issues of fact heard or determined on the motion.</p> <p>2. On a motion to set aside a judgment, defendant’s undisputed affidavit alleged that within thirty days after the summons was served he appeared in person; that plaintiff’s attorney indorsed on the summons an acceptance of such appearance,. and promised to serve thé complaint on defendant; that no complaint was ever served, and defendant had a good defense to the action, and would have defended had the complaint beeen served, but had no knowledge or notice of any proceedings therein after such appearance until after the judgment. Held, that the motion should be granted and the judgment set aside.</p> <p>3. Under Comp. Laws, § 4895, providing that, in an action where the complaint is not served with the summons, if defendant appears within thirty days, and, in writing, demands a copy of the complaint, a copy shall be- served within twenty days, where defendant appeared in-person, and plaintiff’s attorney indorsed on the summons.an acceptance of such appearance, and a promise to serve a copy of the complaint, the statutory provision that the demand therefor be in writing was waived.</p> <p>4. Within thirty days after the summons was served, defendant appeared in person and demanded a copy of the complaint. The complaint was not served, or any notice of subsequent' proceedings given to defendant. On the affidavit of plaintiff’s attorney that defendant had not appeared, judgment was entered. More than a year after knowledge of the judgment, defendant moved to set it aside, setting up the facts with an-affidavit of merits, and stating that on hearing of the judgment he