79 Minn. 264 | Minn. | 1900
Action to determine adverse claims to real estate. The summons was served by publication under and pursuant to G. S. 1894, § 5204, on the ground that defendants were not residents of the state. A proper affidavit was made and filed, together with a cer
Several questions are raised by counsel for appellant, but only one of them need be considered. The rule is well settled by the decisions of this court that in actions where the summons is(served by publication the defendant is entitled, upon proper application, as a matter of right, to an order vacating the judgment, and permitting a defense to be interposed. G. S. 1894, § 5206, provides that the defendant shall be let in to defend in such cases when he makes application therefor, and shows sufficient cause; and the decisions of the court are to the effect that an answer setting up a good defense to the action is “sufficient cause” within the meaning of the statute. Lord v. Hawkins, 39 Minn. 73, 75, 38 N. W. 689; Boeing v. McKinley, 44 Minn. 392, 394, 46 N. W. 766; Bausman v. Tilley, 46 Minn. 66, 48 N. W. 459. Such applications are not addressed to the discretion of the court, as are applications made under G. S. 1894, § 5267, as urged by respondent’s counsel. If proper application for leave to defend be seasonably made, and be accompanied with an answer setting up a defense to the action, it is granted as a matter of right. This application was made within a week after defendant learned of the judgment, and there are no suggestions of laches on his part.
It is, however, contended by counsel for plaintiff that the answer does not state a defense to the action; but the contention is not sound. The complaint is in the usual form of complaints in actions of the kind, alleges plaintiff’s ownership of the land in general terms, and that the defendant claims some interest therein
This disposes of the appeal, and it is not necessary to consider any of the other points made by appellant.
Order reversed.