26 N.W.2d 532 | Minn. | 1947
The summons required defendant to serve his answer on plaintiff's attorney at his office, 436 Palace Building in Minneapolis. Plaintiff's attorney added that his residence address was 1712 Park avenue, Minneapolis. Plaintiff alleged in his complaint that, while riding as a passenger in an automobile operated by one Roy Wesling, he was injured as the result of defendant's negligence in so operating his automobile as to cause a collision with the one operated by Wesling. The summons and complaint were served on defendant on February 8, 1946. He immediately delivered the copy of the summons and complaint left with him to his insurer to conduct the defense. The insurer was represented by Craig Morse, a firm of attorneys. *250
The facts with respect to defendant's default and the grounds upon which the trial court based its decision are in conflict. In resolving this conflict (see, In re Estate of McDaniel,
On March 14, 1946, one day after the filing of the findings and conclusions and two days before the entry of judgment, Willard L. Craig, one of defendant's attorneys, met plaintiff's attorney on a street in Minneapolis and had a conversation with him, in the course of which *251 Craig referred to his inability to serve the answer. Plaintiff's attorney thereupon stated that he, Craig, "could take all the time he wanted to make answer to the complaint." Craig then suggested, in view of the difficulties he had had in finding plaintiff's attorney and his prior inability to serve the answer, that plaintiff's attorney call at the office of Craig Morse to get a copy of the answer. This plaintiff's attorney agreed to do, on either March 15 or 18, 1946. He went to the office of Craig Morse on the 18th and then informed Mr. Craig that he had taken a default judgment against defendant on March 12 (sic). Thereupon defendant immediately moved to have the judgment opened, vacated, and set aside and for leave to answer.
1. Under Minn. St. 1945, §
2. It is obvious that the answer sets forth a meritorious defense. The numerous cases where such defenses have been sustained make citation of authority unnecessary.
3. Plaintiff makes the further contention that the court erred in granting relief because of defendant's alleged failure to file an affidavit of merits. The contention is without factual merit, for the reason that defendant did in fact file an affidavit of merits on the day the motion was heard. No objection was made that the affidavit was filed too late.
Affirmed.