Cutler v. Button

| Minn. | Dec 16, 1892

Vanderburgh, J.

This was an application made on behalf of certain of the defendants, appellants here, to set aside the judgment in this ease, and for leave to answer.

The action was to quiet the title to certain premises .in the city of St. Paul, and judgment was entered thereon in favor of the plaintiff January 6, 1891. Notice of a motion for the relief mentioned was served on Henry J. Horn, Esq., the plaintiff’s attorney, on the 31st day of December, 1891, to be brought on and heard before the court on the 30th day of January, 1892. At that time the motion was heard, and denied on the ground of the-laches of the defendants, and delay in making the application.

In respect to this decision of the trial judge it is sufficient to say that, if the record discloses sufficient evidence to warrant the reasonable exercise of the judicial discretion of the court thereon, this court will not interfere with its judgment and determination in the premises. The court finds, upon the evidence before it, that all the moving parties had notice sufficient to put them upon inquiry in respect to the suit then pending as early as the summer of 1890, and we do not understand that this is disputed by the defendants’ counsel. Besides, he admits that two of the defendants were witnesses upon the trial of the action in 1890, and the others knew of the judgment soon after it was entered. As no good excuse or reason appears for the delay in making the application, they were guilty of unexcused laches in making the motion, whether the. application be deemed as made under 1878 G. S. ch. 66, § 66, or under 1878 G. .8. ch. 66, § 125.

It was not an abuse of discretion in either case for the court to refuse the application, upon the evidence before it.

When it appeared that the defendants had notice of the suit, and delayed their application for many months, it then became proper for the court to inquire and decide upon the question and effect of their laches, and determine the question of their good faith and diligence in making the application, even if treated as made under section 66. This practice is clearly indicated and sanctioned by the former decisions of this court. Lord v. Hawkins, 39 Minn. 76, (38 N.W. 689" court="Minn." date_filed="1888-07-03" href="https://app.midpage.ai/document/lord-v-hawkins-7965715?utm_source=webapp" opinion_id="7965715">38 N. W. Rep. 689;) Bausman v. Tilley, 46 Minn. 67, (48 N.W. 459" court="Minn." date_filed="1891-04-08" href="https://app.midpage.ai/document/bausman-v-tilley-7966914?utm_source=webapp" opinion_id="7966914">48 N. W. Rep. 459.)

Order affirmed.

(Opinion published 53 N. W. Rep. S72.)