Tingle v. Parkston Grain Co.

HENDERSON, Justice

(concurring).

Appellant Diamond is seeking to obtain relief from default under SDCL 15 — 6— 60(b)(1) by filing its Motion for Enlargement of Time under SDCL 15-6-6(b)(2). This motion, when read in conjunction with the affidavit supporting it, clearly reflects that Diamond wants a continuance and also seeks discovery. This Motion for Enlargement of Time was filed after a trial date had been set. It sought, also, to raise many new issues just 13 days before the matter was scheduled for trial. Having not answered, and being 75 days in default, it is understandable why the trial judge looked upon such type of civil practice with disdain. Trial Judges in this state must move litigation along and the Supreme Court monitors reports submitted by trial judges in this state to determine if there is inexcusable delay. Lawyers are reasonably required to timely answer and thereby protect their client’s rights. Lay people do not understand long delays in the court system and here, before us, is an example of a trial judge doing his duty and attempting to prevent unnecessary delay. Indeed, the rights of civil defendants must be guarded, but the right of plaintiffs to have their cases heard, and not to be at the mercy of those who set idly by, must likewise be considered. Normal legal process must not be impeded by defendants who fail to proceed with reasonably prudent action.

The supporting affidavit is extremely weak in this case. First of all, it is signed by the attorney for Diamond. It contains many legal conclusions and a great amount of hearsay — not facts. Facts must demonstrate a meritorious defense, not conclusions of an attorney. It is best that he or she who knows the facts sign the affidavit as to the facts because of the verity which personal knowledge does imbue.

Time passes. Practices change. However, some procedures in the law appear immutable. Nearly 40 years have passed since two honorable and great men in the law, in their own right, the Honorable Turner Rudesill and Honorable George D. Lampert, both deceased, presided on the circuit bench. From them, in the 1950’s, did I learn that to set aside a default judgment for a client, a showing had to be made of excusable neglect in the first instance and secondly, a probable meritorious defense had to be then established to the satisfaction of the trial judge. This cannot be done, obviously, without a good pleading and an affidavit evincing personal knowledge of the facts which establish a probable meritorious defense. The affidavit on file here reflects conclusions and bare assertions, based primarily upon hearsay. Furthermore, testimony of Mr. Schleif, Diamond’s President, reflects that there is re*256ally no dispute on the $9,197.95 amount due and owing with the exception of “Outside of that $200 for the anchor bolts and whatever the material was”. No affirmative defenses were pleaded in the answer.

Therefore, there is no clear abuse of discretion by the trial judge in ruling that the motion for Enlargement of Time not be granted, which as I have pointed out above, included an expansion of delay. This Court, in Clarke v. Clarke 423 N.W.2d 818 (S.D.1988) and Peterson v. LaCroix 420 N.W.2d 18 (S.D.1988) has very recently treated this general subject and has held, inter alia, that a two-prong requirement must be met to obtain relief. It is no different now that it was some 40 years ago when Circuit Judges Rudesill and Lam-pert insisted on compliance with this two-pronged rule. Lastly, I would add that a great amount of delay transpired in this case as a result of Diamond relying on their Minnesota counsel to handle this matter via the telephone. When either the telephone or correspondence did not work, South Dakota counsel was brought in, at the eleventh hour, when the default was entrenched. Too long the lamp was unlit, the loin ungirded.