147 Minn. 156 | Minn. | 1920
This is an appeal from an order granting the defendant’s motion to vacate the default judgment entered against her which, was before this court in a former appeal, Flanery v. Kusha, 143 Minn. 308, 173 N. W. 652. After the appeal was disposed of, defendant made a second application for the vacation of the judgment. The motion papers were dated July 26, 1919, were served on one of the appellants on July 29, 1919, and on the other on July 30, 1919, and the motion was noticed for hearing on August 23, 1919. The statute under which defendant proceeded reads:
“The court * * * at any time within one year after notice thereof, in its discretion, may relieve a party from any judgment * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect.” G. S. 1913, § 7786.
1. The appellants’ principal contentiop is that it conclusively appears that defendant had notice of the judgment more than a year before she served notice of the motion to vacate it. Her first application for the vacation of the judgment was made on the ground that the court acquired no jurisdiction because of the defect in the summons referred to in the opinion on the former appeal, and on the further ground that the judg
Schinderling’s letter states that' the writer wishes to get “this land matter straightened out and the best and easiest way is for you to come up here and we will then go out to the land — make a deal to -sell it,” and adds that “if you do not come up in a few days we will ask the court to divide the land so that we can sell our share.”
Whether the defendant had notice of the judgment prior to July 31, 1918, in view of the conflicting statements contained in the affidavits, was a question of fact for the determination of the district court. In granting the application, the court necessarily must have found as a fact that she did not have such notice prior to the receipt of Schinderling’s letter. It cannot be said that such a finding is palpably contrary to the evidence presented by the affidavits, and hence the order cannot be re
2. Appellants contend that an application to open a default judgment must be heard as well as made within one year after notice of the judgment^ otherwise the court is powerless to proceed under section 7786, G. S. 1913. This contention cannot be sustained. In Gerish v. Johnson, 5 Minn. 10 (23), in referring to this statute, the court said:
“The statute limits the time within which such application can be made to one year after notice of the judgment. * * * All the effect of the statute is to prevent him (the defendant) from making the motion after the expiration of the year.”
And in Jorgensen v. Boehmer, 9 Minn. 166 (181):
“The motion appears.to have been made within one year after notice of the judgment; the court below, therefore, had jurisdiction.”
In Washburn v. Sharpe, 15 Minn. 43 (63), in construing the statute providing that a defendant in an action where the summons had been served by publication might be allowed to defend the action within one year of the rendition of the judgment, the court said :
“It appears from the order to show cause that the application was made by July 24, 1869, and therefore within the year. The limitation refers to the application, not to the action of the court. It is not material, therefore, whether the hearing or the decision were within the year.”
And in Kipp v. Clinger, 97 Minn. 135, 106 N. W. 108, it was said:
“In order to make a case calling for the exercise of the court’s discretion, appellant should have shown that the motion was made promptly, and within one year from actual notice of the entry of the judgment.”
We are of the opinion that, if the application is made and notice of its hearing is given within one year.after notice of the judgment, the court has jurisdiction to give relief.
3. It is familiar law that an application to relieve a party from a default judgment is addressed to the discretion of the court; that in exercising discretion the court should incline towards giving a defendant an opportunity to establish his defense upon a trial on the merits; and that the action of the district court will not be reversed on appeal except for a clear abuse of discretion. Dunnell, Minn. Dig. §§ 5012, 5013, 399.
4. The contention that defendant was inexcusably negligent in failing to answer before judgment, cannot be sustained. The constable who served the summons made affidavit that he explained to her and her husband that she would have to answer the complaint or judgment would be taken against her, but he also stated that she talked in the Polish language and that he does not understand it. In her own affidavit defendant states that she was bom in Poland, came to the United States when she was 11 years old, has never learned to read English, and does not understand the English language, and that her husband cannot read English. She was a farmer’s wife, apparently ignorant and inexperienced in business matters. These are circumstances to be considered. Milwaukee Harvester Co. v. Schroeder, 72 Minn. 393, 75 N. W. 606; Wood v. Schoenauer, 85 Minn. 138, 88 N. W. 411. She further states that soon after the summons was served she showed it to a friend, who informed her that no time was fixed for answering the complaint and that she would not need to answer, and that she believed and relied upon this statement. This was a mistake of law, but such a mistake may afford ground for relief as well as a mistake of fact. Baxter v. Chute, 50 Minn. 164, 52 N. W. 379, 36 Am. St. 633.
5. Appellants contend that the court should not have exercised its discretion in defendant’s favor because they purchased in good faith and for a valuable consideration, and that their interests will suffer if defendant’s negligence is excused. In her affidavit plaintiff states that her interest in the land is worth $2,000. The judgment was for $141.40. Appel
The order appealed from is affirmed.