Smith v. Order of United Commercial Travelers of America

CORSON, J. This is an appeal by the defendant from an order overruling its motion to vacate and set aside a default judgment taken against it through alleged mistake or inadvertence on the part of its officers and attorneys, and for leave to serve and file and answer therein. The plaintiff in this action, who is the surviving widow of William H. Smith, deceased', brought suit to recover on a policy of insurance or certificate of membership in the defendant company. The complaint, after alleging that the deceased was a member in good standing, having paid all dues, assessments, etc., and otherwise complied with the rules and regulations of the order, alleged that the said William Smith had sustained bodily injury by -the accidental lodging in his throat of a large piece of orange, which alone and independent of all other causes had occasioned his death within two days from the happening thereof. It was further alleged that the plaintiff had complied with all the conditions on her part to be performed, and judgment was demanded for the sum allowed by its constitution, with interest and costs. The time for answering having expired and no answer having been' filed or served, on July 19, 1911, judgment was entered in favor of the plaintiff. On September 30th following the defendant made a motion to vacate and set aside the judgment, and for leave to serve and file an answer. This motion was made upon the pleadings, records, and several affidavits. On October 14, 1911, the court denied the motion, from which order denying the motion this appeal was taken. It -is disclosed by the record that the summons was issued on May 1, 1911, and served on the commissioner' of insurance as [635] agent of the defendant on the 20th day of May, and was forwarded- by him to the secretary of the defendant 'at Columbus, Ohio, on the same day. A -correspondence was thereupon opened between the defendant and A. W. Wilmarth, an attorney at law residing at Huron, in this state, the material parts of which correspondence are as follows: “Columbus, Ohio, June 15th, 1911. Smith v. U. C. T. Mr. A. W. Wilmarth, Attorney at Law, Huron, South Dakota — Dear Sir.:. We have this morning been handed by the claim department of the defendant order a copy o-f the summons that was served on the commissioner of insurance for South Dakota -on the 20th day of May. We are advised by this notice that answer must be filed within thirty days after the service of this summons. We have received no copy of the petition and can do no more at this time than' refer the matter to you for immediate attention. You will undoubtedly be able to interpose some motion that will give us time to examine the petition for the purpose of preparing our answer. If you will send a copy of the petition immediately and file some pleading in the -case on or before the 20th inst. we will write you more fully as to our views of the case as s-o-on as w-e have had time to examine the pleading. Very truly yours, Vorys, Sater, Seymour & Pease.” To this Mr. Wilmarth replied as -follows on June 17th: “ * * * As soon as I received your letter called up the firm of Gardner, Fairbank & Churchill -and learned that they were the attorneys who had filed the summons. Mr. Gardner, who-is looking after this matter specially, is out of the city-and will be back Monday. I learned, however, that they had not filed any complaint and no action can be taken by them until they do. They will not attempt to- take ’any advantage after I have notified them of your letter and that I will look after the matter for you. I could enter a general appearance and- then they would have to serve all papers on me in the future and we are legally entitled to thirty days after such notice to serve an answer. However, I do not wish to enter a general appearance until I hear from you again. An appearance zvill certainly have to he made in order to contest any proceedings. Mr. Gardner will be back Monday at which time I zvill see him■ about this matter and- zvill follow your [636] suggestions when I hear from you. I have, many times accommodated Mr. Gardner when he has been -away looking after railway cases and I know lie has given orders to the firm to extend me any accommodations I want, so we will have all the time we desire in this matter. * * * Kindly let me know at once whether to enter a general appearance and demand the complaint which will give thirty days from the time of its service for answer. Will protect the company against any snap judgment at this end of -the line.” To this letter of June 1.7th Mr. Wilmarth received no reply, and on July 18th he wrote to the attorneys at Columbus, Ohio, as follows: “Since receiving your letter relative to the case commenced against the United Commercial Travelers by Mrs. Smith and my answer thereto relative to- making an appearance, you have not written. You of course realize that we are ■in default and as I wrote you, the attorneys for plaintiff will accept a notice of appearance without terms and allow us to put in an answer within any reasonable time thereafter, but I do not think we ought, to presume to extend this privilege to any unreasonable time. I saw Mr. McCarvey, the representative from here to the Grand lodge, U. C. T., and he stated to me that some proposition of settlement was pending but to my mind the interest of the U. C. T. ought to be protected b}^ at least a notice to the other parties of an appearance so that they then cannot take any action without giving us any notice thereof. I simply suggest this as you have not authorized me to enter an appearance and I would not feel warranted in doing that until you authorized me to do so.” In rep-ly to this letter, the attorneys in Ohio wired Mr. Wilmarth as follows: “Our Mr. Safer who- has had matter in charge -out of city you may enter appearance -in Smith case and file answer, or if you will -send us copy of petition we will prepare answer. Have answer day extended so- that we will not be in default.-” It will be observed that this telegram was not sent to Mr. Wilmarth until five days after the entry of judgment in the case. It will also be observed that the failure to- enter a general appearance on the part of the defendant by Mr. Wilmarth and to obtain a -copy of the complaint was through no> fault of Mr. [637] Wilmarth, who had very carefully and fully advised the defendant that it could not expect to secure a copy of the complaint until the company had made a general appearance in the action, and that he declined to enter a general appearance for the defendant until authorized by it so to- do. The affidavits made on the motion to vacate and set aside the judgment by the officers of the defendant at Columbus, Ohio, are very voluminous, extending over more than ioo pages of the printed abstract, and no useful purpose would be served by setting them out in this opinion. It must suffice to say that from the time they received a copy of the summons at Columbus, Ohio, until the telegram of July 24th the regular attorneys of the defendant and its officers neglected to prepare any answer to the complaint and neglected to authorize Mr. Wilmarth to enter its appearance in the action. So far as these affidavits disclose, no reasonable excuse is offered for this delay, nor are facts disclosed sufficient to constitute inadvertence, surprise, or excusable neglect cn the part of the defendant in failing to appear in the action and in failing to file an answer or other pleading therein. It will be observed by the letter of Mr. Wilmarth of June 17th, written to the general attorneys of the company at Columbus, Ohio, that he warned them that "an appearance zoould certainly have to be made in order to contest any proceedings,” and asked them to• advise him whether or not to enter a general appearance and demand a copy of the complaint, and that more thaw a month elapsed before an anszuer zeas made to this letter. The trial court with all the facts fully before it denied the appellant’s motion to vacate and set aside the judgment, and this court has repeatedly held that the granting or refusing of such a motion is largely within the sound judicial discretion of the trial court, and that its ruling will not be disturbed unl.ess it is shown that there has been a manifest abuse of such discretion. McAndrews v. Bank, 25 S. D. 590, 127 N. W. 536; Corson v. Smith, 22 S. D. 501, 118 N. W. 705; Kjetland v. Pederson, 20 S. D. 58, 104 N. W. 677; Meade County Bank v. Decker, 19 S. D. 128, 102 N. W. 597 ; Keenan v. Daniels, 18 S. D. 102, 99 N. W. 853; Minnehaha National Bank v. Hurley, 13 S. D. 18, 82 N. W. 87; Evans v. Fall River County, 4 S. D. 119, [638] 55 N. W. 862; Merchants’ National Bank v. Stebbins, 10 S. D. 466, 74 N. W. 199; Pettigrew v. Sioux Falls, 5 S. D. 646, 60 N. W. 27; Minnekahta State Bank v. Fall River Co., 4 S. D. 124, 55 N. W. 863. We are inclined'to take the view that the order of the court in this case should not be reversed, as there was no abuse of the trial court’s discretion shown in denying the motion. The claim made by the appellants that they are entitled to a reversal of the order of the trial court on the ground that the failure to file and serve an answer was the result of inadvertence, surprise, or excusable neglect is- not in our opinion sustained by the showing made on the hearing. The order of the trial court overruling defendant’s motion to set aside the judgment and for leave to, answer is affirmed.