20 N.W.2d 702 | Minn. | 1945
By his assignment of errors, plaintiff contends that the judgment of the trial court granted greater relief than that demanded in the intervener's complaint, contrary to the statute governing default judgments (Minn. St. 1941, §
1. The order denying plaintiff's motion to modify the judgment was appealable. In Halvorsen v. Orinoco Min. Co.
"* * * The order could not be reviewed on an appeal from the judgment, because it was made after the judgment was entered; hence it was appealable, for it was a final order affecting a substantial right in a summary application in the action after judgment. County of Aitkin v. Morrison,
See, Minn. St. 1941, §
2. Written notice of the entry of the order denying the motion to modify the judgment was served on plaintiff April 16, 1945. Plaintiff did not issue his notice of appeal until June 14, 1945, or 59 days after he had received written notice of the entry of said order. Section
3. Plaintiff's appeal is also from the judgment. Are the issues which plaintiff seeks to raise by this proceedingres judicata by virtue of the order from which he failed to take seasonable appeal? Plaintiff chose the remedy of a motion to modify the judgment. The motion was fully tried, and a decision was made on the merits. It follows that the court's order was as conclusive upon the issues necessarily involved as a final judgment. No other proceeding could have been thereafter maintained to set aside the judgment. The entire matter is res judicata, and plaintiff is bound by the order. Halvorsen v. Orinoco Min. Co.
The Halvorsen case is directly in point on the facts. There, the defendant made a motion to have a default judgment modified on the ground that the judgment granted a greater measure of relief than demanded by the prayer of the complaint. The motion was denied, and defendant failed to appeal from the order of denial within the 30-day statutory period, but thereafter appealed from the judgment. In holding the matter res judicata, the court said (
"* * * Orders made upon motions affecting substantial rights, from which an appeal lies, if the matter in question has been fully tried, are as conclusive upon the issues necessarily decided as are final judgments." (Citing cases.)
Muellenberg v. Joblinski,
No seasonable appeal having been taken from the order denying a modification of the judgment, all issues raised by plaintiff are res judicata.
Affirmed.