Jones v. Hopkins
South Dakota Supreme Court
Appeal from Circuit Court, Brown County. Hon. Frank McNulty, Judge. Action by D. D. Jones against C. M. Hopkins. From an order vacating a default judgment in favor of plaintiff, he appeals. Even though it were conceded that the service of the summons and complaint in this action was not made on May 12, 1908, it would not follow that the judgment should be vacated or set aside. Naming the wrong day in an affidavit of service is a mere irregularity and not fatal.
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Appeal from Circuit Court, Brown County. Hon. Frank McNulty, Judge. Action by D. D. Jones against C. M. Hopkins. From an order vacating a default judgment in favor of plaintiff, he appeals. Even though it were conceded that the service of the summons and complaint in this action was not made on May 12, 1908, it would not follow that the judgment should be vacated or set aside. Naming the wrong day in an affidavit of service is a mere irregularity and not fatal. McAuliffe v. Hughes, 112 N. Y. Supp. 486. There was but one question before the circuit court to be considered, and the question…
1Opinion of the CourtItaney, J.
This appeal is from an order vacating a default judgment, on the ground that the summons was not in fact served upon the defendant.
The judgment roll discloses a summons, dated April 9, 1908, a complaint, verified before Ira O. Curtiss, then attorney for the plaintiff, on the same day, an affidavit of service, subscribed and sworn to before Mr. Curtiss May 1, 1909, stating that the summons and complaint came into the hands of Parker IT. Lyons, a citizen of this state, over 21 years of age, and not a party to or *619in any manner interested in the cause of action, on April 9, 1908, and that the…
2Cases cited1 opinion
- Matchett v. LiebigSouth Dakota Supreme Court · 1905
3Cited by1 opinion
- Egge v. HaglundSouth Dakota Supreme Court · 1920