35 Minn. 278 | Minn. | 1886
Appeal from an order made pursuant to Gen. St. 1878, c. 66, § 66, allowing the defendant (a non-resident, upon whom there had been no personal service) to serve and file an answer after judgment. The plaintiff claims that the court erred in granting the order, for the reasons (1) that the proposed answer does not constitute a meritorious defence; (2) that there was no sufficient affidavit of merits; (3) that defendant did not show due diligence.
Such applications are addressed largely to the discretion of the court, and nothing but a palpable abuse of discretion in granting such an application would justify us in interfering with the action of the court below. Washburn v. Sharpe, 15 Minn. 43, (63.) Where a judgment has been taken by default against a non-resident, upon whom there was no personal service of the summons, courts ought to be liberal in granting leave to answer. The proposed answer on its face contains at least one good defence, and another partial defence. The objection to the affidavit of merits is that it was made by the attorney, and not by defendant himself. Such affidavits should be made by a person having personal knowledge of the facts, and hence usually by the party to the action. But if, for any cause, the facts are within the personal knowledge of the attorney, there is no reason why he may not make the affidavit. See Washburn v. Sharpe, supra. In this case the attorney makes the affidavit, not upon information and belief, but positively, and hence we must assume upon personal knowledge of the facts.
When an application of this kind is made within a year from the rendition of the judgment, by a non-resident upon whom there was no personal service, there is no presumption against him of lack of due diligence in interposing his defence, as in a case where he was personally served. Hence he is not required, at least in the first instance, to show that he had not actual notice of the action in sea
Order affirmed.
