Tristate Fair Ass'n v. Lasell

BURCH, J. Plaintiff commenced this action in the municipal court of Aberdeen, and defendant demurred to the complaint. The demurrer was overruled, and an appeal taken to- this -court where the ruling of the lower court was sustained. Tristate Fair Ass’n v. Lasell, 45 S. D. 414, 187 N. W. 824. No- application for a stay of proceedings pending appeal was made,- nor was there any order of court staying proceedings. On overruling the demurrer, the court allowed defendant 20 days in which to- answer. No answer was filed or further proceeding taken in the case until 8 days after the remittitur was received and filed by the clerk of the mu [528] nicipal court, on May 2, 1922. On the 10th of May following, defendant served an answer on a member of the firm, of attorneys representing’ plaintiff. Nothing was then done until March 17, 1923, when a member of the firm of plaintiff’s attorneys, but not the attorney on whom the answer was served, applied for and obtained a judgment by default without notice to defendant. A few days later when defendant learned of the entry of default judgment he moved to- set aside and vacate such judgment. His motion was denied, and defendant has appealed from the order denying the motion to vacate the default judgment. Evidently'counsel for both parties acted under the belief that the appeal operated as a stay, and that defendant would have 15 days after filing of the remittitur, under trial court rule 7 (40 S. D. Prelim, p. 19). This rule received a construction in Davison County v. Watertown Tile & Construction Co., 48 S. D. 24, 201 N. W. 1005, and there it was held that said rule 7 applied only where sections 3159 or 3163 had been complied with. Under those sections a court order, either of the trial court or this court, is ’necessary to stay proceedings. No- such order having been obtained, defendant w.as in default of an answer from and after the expiration of the 20 days allowed by the trial court until the service of the answer. But this case differs in several respects from the Davison County Case. There, when the answer was served, it was refused for the reason that service was not in time, and default judgment was rendered after notice to defendant. In the instant case, the answer was not refused, but was accepted and retained. After nearly 9 months from the serving of the answer, default judgment was obtained without notice to defendant. By accepting service of the answer out of time without objection, the time of service was waived, and, after the service of the answer and its acceptance and retention without objection, defendant was no longer in default. Tire court thereafter was without jurisdiction' to render judgment by default. The order appealed 'from is reversed. CAMPB'BDE, P. J., disqualified and not sitting. POEDBY and SHERWOOD', JJ., concur. GATE'S, J., not sitting.