150 Minn. 329 | Minn. | 1921
The parties to this action entered into an executory contract for the sale to defendant of certain land owned by plaintiffs situated in Anoka county. A down payment on the purchase price was made and defendant was given possession of the land on March 15, 1914. Defendant subsequently discovered what he considered were fraudulent representations concerning the land, made by plaintiffs at the time the contract was entered into, and in April, 1915, he commenced an action in equity to rescind the contract, and recover the down payment. At that time there was an instalment óf the purchase price which he fathed and refused to pay. Plaintiffs answered in that action denying the fraud. Thereafter they duly gave notice of a cancelation of the contract for the
This action, the ejectment suit, was promptly remanded to the court below on application of plaintiffs and was duly noticed for trial at the October, 1916, term of the court where it was pending. It came on for trial on October 11. Both parties appeared, and after some preliminary proceedings and objections, not here material, the issues were tried. At the conclusion of the trial the court directed a verdict for plaintiffs and judgment was thereafter on November 39, 1916, duly rendered to the effect that they were the owners of the land and entitled to the possession of the same. Defendant then surrendered the premises to plaintiffs, who ever since have and now do hold possession thereof. On the trial defendant moved that the action be again consolidated and tried with the action to rescind the contract, which was denied, on the ground that that action had not been remanded from this court and was still pending therein. The ruling was correct. That action was subsequently remanded to the court below. There was no appeal from the judgment rendered in this action and it became final and beyond attack, except under the mistakes and amendment statute, six months from the date of the entry, or on May 39, 1917.
Thereafter, on October 37, 1919, some two years and eleven months after the entry of the judgment, defendant made the motion involved on this appeal, to set the judgment aside and for a retrial of 'the action, on two grounds, stated in a word, (1) excusable neglect, and (3) that the judgment exceeded the relief demanded by the complaint and to that extent was void. The motion was granted by the trial court and plaintiffs appealed.
The judgment in the case at bar was not entered on default of defendant to appear. Defendant did appear and the title to the land from the view-point of plaintiffs’ case was expressly involved. Their title was alleged in the complaint, and stood admitted for want of a denial in the answer. The issues were tried, both parties taking part therein, and although the trial court said to the jury, in instructing a
The judgment adjudging plaintiffs the owners of the land was not therefore void as not within the issues in the case, and, since no relief was applied for upon discretionary grounds within the time limited by statute, it became final and free from attack with the expiration of the time to appeal therefrom. The order vacating it must be reversed.
Order reversed.