
    FARRELL, Appellant, v. MYTYS et al, Respondents.
    (196 N. W. 495.)
    (File No. 5429.
    Opinion filed December 21, 1923.)
    Appeal and Error — Judgments—Opening or Vacating — Relief from Default Judgment Held Not Precluded.
    That an affidavit of merits and a proposed answer submitted with a motion - to vacate a default judgment were n,ot served upon ■ plaintiff’s attorneys cannot b© urged on appeal to defeat relief where plaintiff appeared at the hearing of the motion, and did not resist it on that ground. .
    Appeal from. Circuit Court, Minnehaha 'County; H'on. L. L. FlEEGER, Judge.
    Action by Fay Farrell against Adam Mytys and another. From an order vacating a default judgment for plaintiff, plaintiff appeals.
    Order ’ affirmed.
    
      Krause & Krause, of ‘Dell Rapids, for Appellant.
    Appellant cited: Larson v. Rumley Co., 35 S. D. 542, 153 N. W. 301; Des Moines, etc., Inc. Association v. 'Clute, 35 S. D. 154, P51 N. W. 281; Judd v. Patton, 13 G. D. 648-55; Union Savings Assn. v. Summers, 40 IS. D. 177; 166 N. W. 638; Mc-Harg v. 'Finance Corporation, 44 S. D1. 144, 152; 182 N. W. 705; Stevens v. Faus, 20 S. D. 367, 371. '
   GATES, J.

Defendants were in default, relying upon abortive proceedings to secure a change of venue. Judgment was entered for plaintiff by default. Defendants moved to vacate the judgment and for leave to answer. An affidavit Of merits and a proposed answer were made. It is urged that these were not served on plaintiff’s attorneys, but plaintiff appeared at the hearing of the’motion, and did not resist the motion on that ground. The only tangible objections made to the granting of the motion were that there was an insufficient showing of merits, and that the answer did not disclose a defense. The trial court found that the judgment was rendered through mistake, and that the answer stated a valid defense, and entered an order vacating the judgment. Plaintiff appeals.

The afHdavit of merits might not have been sufficient under former circuit court rules 9, 10, and ri, in effect November 15, 1909 (22 S. D., preliminary page 4), but was sufficient under present trial courts rule io (40 S. D., preliminary page 20).

Appellant has not argued the point that the answer did not state a defense.

The order appealed from is affirmed.

Note. — Reported in 196 N. W. 495. See, Headnote, American Key-Numbered Digest, Appeal and error, Key-No. 232(1), 3 C. J. Secs. 640, 800.  