81 Minn. 515 | Minn. | 1900
Appeal from an order opening a default judgment upon a complaint to recover on two promissory notes.
Summons was served on defendant by the attorney of plaintiff, who has since become, by purchase, the owner of the judgment. Defendant claims that he was misled by a promise of plaintiff’s attorney at the time of serving the summons, to the effect that nothing
The application to open the judgment was made under the statute (G. S. 1894, § 5267), and it follows that the question we must determine is whether the trial court exceeded the bounds of judicial discretion in the order appealed from, which is the only limitation upon the rule authorizing such relief in this court. Reagan v. Madden, 37 Minn. 878 (402); Milwaukee Harvester Co. v. Schroeder, 72 Minn. 393, 75 N. W. 606; Hull v. Chapel, 77 Minn. 159, 79 N. W. 669. The affidavit of merits was not in strict compliance with the rule referred to, and no answer was proposed, according to the usual and proper practice, which should be followed in such cases; and, had the court held that such formal affidavit and proposed answer were essential, we should not have interfered. But the rule
The main difficulty in sustaining the order of the court below rests upon the defendant’s delay of seven and one-half years from the entry of the judgment before making the application to open the default. Defendant insists that he had no notice of the judgment until a month before the order to show cause was obtained, and while this enables him, within the strict letter of the statute, to ask for the relief sought, yet such laches, without a satisfactory excuse, would not call for the exercise of the discretion of the court; but the defendant sets forth, in substance, that: An intimate and friendly relation existed between himself and the plaintiff at the time the suit was commenced, and continued for several years. Thereafter the summons was served upon defendant by plaintiff’s attorney, who was also intimate with both plaintiff and defendant. At the time when the summons was served, the defendant stated fully the facts and circumstances which he then, as now, claims relieved him from any liability, to the attorney of the plaintiff, and was told by him “to pay no further attention to said action, and that no steps would be taken therein without seasonably notifying him,” which statement he relied upon, but the judgment was in fact entered notwithstanding such assurance, and for several years, during the continuing of such intimacy, no mention of the judgment was ever made by the attorney or plaintiff nor effort taken to collect the same, and defendant first derived knowledge of its existence
“It is well settled, in proceedings strictly judicial, that where a defeated party has been prevented from fully exhibiting bis case, by fraud or deception practiced upon bim by bis adversary, as by keeping bim away from court through a false promise * * * a new suit may be sustained to set aside and annul tbe former judgment or decree, and open tbe case for a new and fair trial or bearing.” Street v. Town of Alden, 62 Minn. 160, 64 N. W. 157.
Reasons that would warrant a court, on a trial, in setting aside a judgment, might also reasonably influence a court in opening a judgment for a bearing, under tbe authority given by tbe statute referred to; and while tbe laches of tbe defendant, unexplained, would defeat bis motion, yet those very delays, accepting bis affidavit as true, were caused by false promises, and a course of action after-wards that lulled bim into security, that explains bis delay. Hull v. Chapel, supra.
Defendant urges with much force and ability tbe effect of tbe plaintiff’s counter affidavits and tbe affidavit of defendant in rebuttal. It seems that tbe court below considered these affidavits, although not bound to do so. Ordinarily a court upon such a bearing should not try tbe issuable facts in tbe case upon a motion to open tbe judgment upon affidavits. A reasonable prima facie showing as to tbe nature of tbe defense is sufficient to justify tbe exercise of tbe discretion of tbe court, and tbe court ought not to go into a trial of a cause upon a species of evidence that is wholly insufficient to produce conviction of truth on a disputed issue of fact, and in which tbe parties are deprived of tbe correct application of the rules of evidence. While tbe question of diligence may be thus met by counter affidavits, yet tbe merits of tbe cause ought not to be decided by resort to an adverse showing by affidavits on such a motion. Lathrop v. O’Brien, 47 Minn. 428, 50 N. W. 530; Freeman, Judg. § 109, and cases cited. But tbe consideration of such affidavits in this case was not prejudicial to tbe defendant, and tbe plaintiff, wbo introduced tbe same, has no right to complain.
The order of the district court is affirmed.