132 Minn. 354 | Minn. | 1916
Plaintiff is a fraternal beneficiary society. Defendant was a member of the society. In 1910 plaintiff undertook to expel defendant, and he thereafter paid no assessments or dues. This action was brought in 1914, the complaint alleging that defendant still claimed to be a member of the order and asked that his beneficiary certificate be adjudged cancelled. The summons was served August 31, 1914. Plaintiff was ill at the time. He interposed no answer and judgment was entered by default on October 2, 1914. In November, 1914, defendant, at the suggestion of a friend, sent his papers by his son-in-law to Mr. Chesnut, a lawyer with whom defendant had previously left his beneficiary certificate, with the request that this attorney appear in the action. On November 24 Mr. Chesnut discovered that judgment had been entered, and upon receipt of this information he advised plaintiff’s son-in-law of that fact, and advised him further that no course was open to him except to make application to vacate the judgment. Mr. Chesnut was not employed for that purpose, nor was any one else. Not until nine months thereafter did defendant make another move. On September 7, 1915, his present attorney prepared an application to have the judgment opened. The trial court granted the application.
Such applications are addressed in a large measure to the discretion of the trial court. At the same time this discretion must be controlled by the statutes of the state and by certain well settled rules of law. 'The statutes provide that the court may relieve a party from, a judgment only when taken against him through his mistake, inadvertence, surprise or excusable neglect (G. S. 1913, § 7786
From an affidavit presented by plaintiff it affirmatively appears that shortly before this application was made defendant was waited upon by a former officer of plaintiff society, that this former officer advised defendant that a good lawyer would be able to obtain an order setting aside the judgment, and urged him to make the application, and that this application was made pursuant to such suggestion. Defendant does not deny these statements. It seems clear that he acquiesced in the judgment obtained until he was thus stirred to action. After such long acquiescence we are of the opinion that the opening of the judgment was beyond the discretion of the court. See Groh v. Bassett, 7 Minn. 254. (325); Altmann v. Gabriel, 28 Minn. 132, 9 N. W. 633; McClure v. Clarke, 94 Minn. 37, 101 N. W. 951.
Order reversed.
[R. L. 1905, § 4160].