139 Minn. 320 | Minn. | 1918
This case was on the May, 1917, calendar of the district court of Rice county for trial by jury. On the preliminary call of the calendar it was the ninth case for trial. The only answering defendant, Galen H. Coon, lives in St. Paul. His .attorney lives on a farm some miles from St. Paul. Plaintiff’s attorney resides in Minneapolis, The trial of jury oases commenced Monday, May 14. On the morning of Tuesday, May 15, defendant called the clerk of the court by telephone, was
The big fact is, that defendant has not had a trial of his ease on the merits. This is not conclusive because a party may, by neglect, lose his right to a trial on the merits. But thé courts will extend much liberality in opening a default, if the party defaulted has acted in good faith' and the prevailing party can be made whole by the imposition of terms.
The next important fact is, that these cases were taken up and disposed of out of their regular order. The rules of court provide that eases shall be tried in their order on the calendar. Litigants are entitled to rely on this rule. These cases were advanced ahead of a case which stood earlier on the calendar for trial and which was taken up for trial immediately after defendant was defaulted. Had all eases been taken up in their order on the calendar, defendant’s cases would not have been reached earlier than 5:30 p. m. on Wednesday. It is hardly conceivable that the court would, under the circumstances, have defaulted three jury cases at that hour of the day. Defendant was preparing to appear for trial on Thursday morning when he learned he had been defaulted. He acted promptly after 'discovery of the default. He made application to open the default five days before the jury had been discharged for the term. The cases might have been reinstated and tried at that term of court. Defendant acted in good faith. His answer stated a good defense. He presented some excuse. The time lost by
Order reversed.