Cowie v. Harker

GATES, J. This is an appeal from an order vacating a default and permitting defendant to answer. The order continued the judgment as security and muniment of title and provided that it “shall in no way whatever affect the rights of persons who may have acted' upon the faith of the judgment herein, though they may in law be plaintiff’s successors in interest.” Prior to considering the merits, we must dispose of respondent’s motion to dismiss the appeal. [1] The order was signed January 29, 1912, and was served on plaintiff’s attorneys on that date but was not filed in the office of -the clerk of the court until March 14, 1912. The appeal was not perfected until February 12, 1913. Unless service of the order constituted “written notice of the order,” the appeal was taken in time, because no- formal notice of .the order was served. Section 442, C. C. P., provides that “the appeal to the Supreme Court must be taken within sixty days after written notice of the order shall have been given to the party appealing.” Section 317, C. C. P., provides: “An order becomes complete and effective as such when made in writing, signed by the court or judge, attested by the clerk and filed in his office.” It is argued by respondent that the word “notice” in this connection should be interpreted to mean “knowledge,” and the case of Brooks v. Bigelow, 9 S. D. 179, 68 N. W. 286, is relied upon. That case was decided prior to the adoption, in its present form, of section 317, C. C. P. We are of the opinion that by the decision in First National Bank v. McCarthy, 13 S. D. 356, 83 N. W. 423, this court is committed to the doctrine that service of the order is insufficient and that an [523] actual notice of the order must be served in order to start the running of the time within which the appeal may be taken. The motion to dismiss is therefore denied. Appellant attacks the order vacating the default because defendant’s application was not timely and because -there was no sufficient showing of mistake or exousable neglect to justify the making of the order. It appears that judgment was entered on December 7, 1909, and that no steps were taken by the then defendant, Joseph Harker, -to vacate the judgment until October 12, 1911. It apears from Harker’c affidavit that he never heard or knew that judgment had been obtained until May x, 1911; that at said time he was at his home in Los Angeles, Cal.; and that he did not return'to South Dakota until September 18, 1911. [2] On .the other hand, it appears from the return of the officer that the summons was personally served upon the defendant Harker at Mitchell, S. D., September 27, 1909, and there is evidence tending to show that Bergakker, the tenant under Harker of the land in controversy, was notified as early as February 1, 1910, that Vanaas & Mather then owned the land and was asked if he wanted to rent it. Bergakker replied in writing under date of February 3, 1910, saying that he did not understand the letter to him; that he had already rented the place, and among other things saying, “I expect to hear from the other party in a few days.” It is argued by appellant that the words “other party” must refer to Harker and that this letter-is subject to the interpretation that, upon receiving word that Vanaas & Mather owned the land, Bergakker notified Harker thereof. We think the quoted words from that letter are too vague and uncertain to warrant the interpretation that Bergakker ever conveyed any information to Harker which would tend to show notice of the judgment; nor can the letter to Bergakker be properly construed as a notice of the judgment to him, as tenant of Harker. [3] There also further appears in the affidavit of one of the attorneys for appellant the following: “Affiant further states upon his information and belief that, immediately after receiving said letter above quoted, the said J. Bergakker reported its contents to the defendant Joseph Harker and as affiant is informed and verily believes the said Bergakker informed the defendant Joseph [524] Harker at Mitchell, S. D., during Corn Palace Week in the fall of 1910, that there were adverse claimants to- said land who claimed said Harker had no further title, interest, or estate in said land and premises.” This affidavit upon information and belief is not entitled to be considered for the reason that the sources of information and grounds of belief are not set out. Miller v. Munson, 34 Wis. 579, 17 Am. Rep. 461; 2 Cyc. 8, 25, note 33. Even when so set out the source of information must be such that the affidavit would not then be open to the objection that it was hearsay. We do not think that we would be warranted by the record in- holding that the application was not made within sufficient time after notice of the judgment. [4] Even conceding, for the purposes of this decision, that this action was brought under the provisions of chapter 81, Laws 1905, we cannot agree with counsel when he contends that the filing of the notice of lis pendens imparted constructive notice of the judgment to Harker; such is not the function nor purpose of a notice of lis pendens. [5] While Hjarker by his own showing, delayed his application from May, 19x1, until October of the same year, the record does not disclose any facts that placed the parties in any different situation in October from what they were in May, and whether we consider section 151, C. C. P., as applying thereto, which authorizes the court to exercise its discretion in such matters at any time within one' year after notice of judgment, or consider section 9 of chapter 81, Laws 1905, as applying, which last section allows the court to relieve a defendant at any time within two years after entry of judgment, the trial court was vested with the jurisdiction to grant the relief. [6] The second ground of appellant’s objection to the making of the order, to-wit: that there was not sufficient showing of mistake or excusable neglect to justify the order, has given us much concern. It appears .from the affidavit of Harker that on September 27, 1909, the date on which the summons and complaint in this case were served upon- him as claimed by the officer, that the officer served a summons and complaint upon him in the case of Bystrom & Bystrom against him and another defendant; that the officer informed him that the Bystrom action was brought to correct an apparent defect of title; that Harker examined the papers and [525] ascertained that the statements made by the officer were correct and so> informed the officer that it was all right; that he would pay no attention to the action. Harker further alleges in his affidavit that the summons and complaint in this case were not served upon him, and nothing was stated to him by the officer about the present case, and that, if the summons and complaint in the present case were at said time served upon him, they must have been so inclosed in the papers in the Bystrom -Case that he did not see the same and that they were not called to his attention, and that he did not give the Bystrom papers a careful examination, as he was satisfied that he had no interest in the premises in that case. Harker’s affidavit is corroborated by that of 'his son. The officer making the service made - affidavit that he first served the papers in the Bystrom. Case, and the statements of Harker in relation thereto are sifbstanntially corroborated. He then states that he thereupon served the papers in the present case and said to Harker, “Here are some papers in an action in which A. E. Cowie is plaintiff;” and Harker said, “What is that about?” .and that lie replied, “I don’t know exactly, but something of a similar nature, I believe; you can tell by reading it over;” and that Harker said, “I am in a hurry now,” and placed all the papers in his pocket, and that a few days thereafter he saw Harker and Harker again said to him in substance that he did not have any interest in the Bystrom land. There are other affidavits which show that the summons a,nd complaint in this case were placed in the hands of the officer. The officer immediately made the usual return of service. From the proposed answer it appears that the title-of Harker was derived from the foreclosure of a mortgage and that the claim of the plaintiff in this case arises 'by mesne conveyances from the mortgagor. In the order setting aside .the default, the trial court cited among other cases, as its ground for granting relief, the case of Searles v. Christensen, 5 S. D. 650, 60 N. W. 29. The citing of this case gives color to the idea that the court was of the impression that-the summons had been served but that the officer made misleading statements to Harker. In our opinion this case presents so close a question that the trial court might with equal propriety have denied the application to vacate .the default. If it had done so, we should have been inclined to affirm the ruling. [526] In Rosebud Lumber Co. v. Serr, 22 S. D. 389, 117 N. W. 1042, this court said: “The exercise of that discretion will not be reviewed by this court, except in cases were there has been a clear abuse of such discretion, and a much stronger case must be made as to the abuse of such discretion where a court has granted the motion than in a case where the 'motion has been denied.” In view of the above and of similar holdings in other cases, and particularly in view of the fact that by the court’s order the opening of . the default was made of no effect as against purchasers of the land in good faith, we do not feel warranted in saying that-the trial court has abused that discretion which the law commit's to it. The order appealed from is affirmed.