#### Meade County Bank of Sturgis v. Decker.

While the provisions of the Code conferring upon trial courts power to vacate and set aside default judgments, and allowing parties to defend upon the merits, where, by mistake, inadvertence,' surprise, or excusable neglect, they have omitted to file tlieir pleadings within time, should be . liberally construed, yet much must be left to the sound descretion of the trial court, and that discretion, when exercised, will not ordinarily be reviewed by an appellate court unless abused.

(Opinion filed February 21, 1905.)

On review on the merits.

Affirmed.

For former opinion see 17 S. D. 590, 98 N. W. 86.

Corson, P. J.

This case was before us at a former term

■of this court upon a motion to dismiss the appeal. • The decision in that case is reported in 17 S. D. 590, 98 N.W. 86. The case is now before hs for a review of the first order upon its -merits.

= Prior to February 6, 1908, the defendant, being indebtéd to the plaintiff in the sum of about’‡7,000, - executed to the plaintiff five promissory notes, and on the latter day, to secure the same, executed to the plaintiff a chattel mortgage upon his stock of goods, wares, and merchandise in his store in Sturgis, ■S D. The plaintiff subsequently, in February, deeming itself insecure, took possession of said stock of goods, and on the 9th day of March commenced an action to foreclose said chat-1 el mortgage; serving a copy of the summons and complaint upon the defendant personally. On April 13th, no answer having been served or filed, a judgment by defaultwas entered. Subsequently to the commencement of the action to foreclose the chattel mortgage, and before the time for answering had *129expired, namely, on the 12th day of March, 1903, the defendant filed his petition in bankruptcy in the District Court of the United States for the District of South Dakota, Western Division, and was thereafter, on the 16th day of March, duly adjudged a bankrupt. On April 22d the defendant, by his attorney, and Edward T. Marshall, trustee in bankruptcy, by his attorneys, made a motion to vacate and set aside the judgment and for leave to answer the complaint. This motion was heard, and on the 1st day of May, 1903, the court made the following order: “That the said motion, so far as the defendant, Levi Decker, is concerned, is by the court overruled and denied; but the said motion on behalf of Edward T. Marshall, trustee in bankruptcy, is granted, and the said judgment and decree of April 13, 1903, is vacated and set aside in so far as it affects the said Marshall, trustee in bankruptcy, and leave is given the said Edward T. Marshall, trustee in bankruptcy,to file his proposed answer herein and to defend this action. ’’ Prom this order the appeal was taken to this court.

The defendant, in support of his motion to vacate and set aside the judgment, and £or leave to file and serve an answer, relied mainly upon the affidavit made by his attorney, and upon the proposed answer served with the notice of the motion. In this affidavit the attorney for the defendant set out various statements alleged to have been made to him by the attorneys for the plaintiff, which he claims misled him, and by reason thereof he failed to file answer within time. It will not be necessary, in the view we take of the case, to set out this affidavit in this opinion, as the material statements therein consist of alleged conversations between the attorney for the defendant and the attorneys for the plaintiff, and were, in the *130main, denied by the plaintiff’s attorneys. The Court, in its or' der, it will be noticed, states no reason for denying the motion and hence we aro left to conjecture as to the court’s grounds for denying the same. The order may have been properly denied on the ground that the defendant failed to show such inadvertence, surprise, or excusable neglect on his part as to bring his case within the provisions of the Code authorizing the court to vacate and set aside a judgment and grant leave to answer. This court cannot say, in view of the 'proofs on the part of the defendant and the denials on the part of the plaintiff, that the court would have abused its discretion in denying the motion on that ground. Again, the court may have taken the view that under the bankruptcy proceedings the defendant, having filed his petition in bankruptcy, bad no such interest in the result of the action to foreclose the .chattel-mortgage as would require the court to set aside the default. This court is unable to say that the defendant had such an interest remaining in the property that he was prejudiced by the denial of the motion. If the creditors of the defendant had such interests in the property, such . interests were fully protected by permitting the trustee in 'bankruptcy to serve and file an answer and contest the validity of the chattel mortgage.

- While this court, by its - decisions, has sought to impress upon the trial courts the duty of giving a liberal construction to the provisions of the Code conferring upon them the power to'vacate and set aside judgments, and allow parties to make their defenses upon the merits, where, by mistake, inadvertence, surprise, or excusable neglect, they have omitted to file their pleadings within time (Griswold Linseed Oil Co. v. Lee, 1 S. D. 531; 47 N. W. 955, 36 Am. St. Rep. 761; Farrar v. Con*131solidated Apex Mining Co., 12 S. D. 237, 80 N. W. 1079), still much must be left to the sound judicial discretion of the trial court, and, when that' discretion has been exercised, and this court is unable to say there has been, an abuse of such discretion, the action of the trial court should ordinarily be affirmed. "■ - *r.*

These views lead to an affirmance of the order of the circuit court denying defendant’s motion, appealed from, and the same is affirmed.