80 Minn. 524 | Minn. | 1900
This is an action in ejectment, and is before this court on defendants’ appeal from an order granting a second trial. The order appealed from was based on G. S. 1894, § 5845. The facts are as follows:
No written notice of the entry of the judgment was ever served upon plaintiffs or their attorneys. Defendants do not claim that any such notice was ever given, but do claim that the satisfaction of the judgment which was delivered to plaintiffs upon the payment of the costs answered every purpose of a formal notice, and was a sufficient compliance with the statute. And they further claim that the conduct of plaintiffs in taking notice of the judgment and paying the costs entered therein constituted a waiver of the statutory notice. Whether either of these contentions be sound presents the only question in the case.
1. G. S. 1894, § 5845, provides:
“Any person against whom a judgment is recovered in an action for the recovery of real property, may, within six months after written notice of such judgment, upon payment of all costs and damages recovered thereby, demand another trial, by notice in writing,” etc.
The object of this statute is to secure to the defeated party in ac
Was the satisfaction of the judgment delivered to plaintiffs under the circumstances stated a sufficient written notice of the judgment, and a compliance with this statute? We are of the opinion that it was not. It was not intended as such by defendants’ attorney at the time, and plaintiffs had no reason to suppose or believe that it would affect their rights with respect to the time within which a second trial should be demanded. If the satisfaction be held a sufficient compliance with the statute, actual notice of the judgment should also be held sufficient. But all the authorities hold that actual notice will not dispense with the statutory written notice. 1 Am. & Eng. Enc. Pl. & Pr. 251, and cases cited. And inasmuch as the statute must be strictly complied with, and as it was not intended that the satisfaction should serve as a notice of the entry of the judgment for the purpose of limiting the time to demand a second trial, we are constrained to hold that defendants failed to comply with the statute in this respect.
2. It is clear that a party may waive written notice. Thorne v.
Order affirmed.