Larson v. M. Rumely Co. , 35 S.D. 542 ( 1915 )

McCOY, P. J.

On the 10th of October, 1913, default judgment was entered in favor of plaintiff and against defendant in the circuit court of Minnehaha county. Thereafter, on November 18, 1913, defendant appeared in said action and moved to vacate said- default judgment, upon affidavits, and- for leave to make answer, and with said motion papers served a proposed answer, consisting of a general denial. Plaintiff appeared on the return day of said motion and resisted the vacation of such default and leave to defendant to answer, on the ground that defendant’s-showing wa-s not sufficient, in that no sufficient affidavit of merits was presented on the part of defendant as a prerequisite to the opening of such default. Over this objection the court made an order opening the default, arid to which ruling of the court and making of such order the plaintiff duly excepted, and now on appeal urges such ruling as error. The resident attorney for respondent made affidavit that he had been retained to- defend in said action, and that from the statement made of the case to him by defendant he verily 'believed that defendant had a good and substantial defense to- the action on its merits. The nonresident attorney -o'f defendant made affidavit that he is attorney for defendant at its (defendant’s) home office, and that defendant has a good and meritorious- defense to plaintiff’s cause of action on the merits. The precise -question here involved was considered and passed upon by this court in Des Moines Ins. Ass’n v. Clute, 151 N. W. 281, in a case where the affidavit of merits was more strongly specific than the affidavits here presented. The rule announced in that case must govern here. We are of the view that no sufficient affidavit of merits was presented on the motion to open default and for leave to answer There is no showing whatsoever, that either of defendant’s said at-torn éys have any personal knowledge ■ as to the merits of the action.

The order appealed from is reversed.