78 Minn. 295 | Minn. | 1899
Defendants appeal from an order denying their motion, made June 17, 1899, to open, vacate, and set aside a default judgment entered against them on November 20, 1897, and for leave to answer in an action brought to determine adverse claims to real" proper tv in plaintiff’s possession. There are two good reasons for affirming the order:
1. There was no abuse of discretion when the motion was denied on the showing made at the hearing as to the service of the summons and complaint on each of the defendants more than 10 days prior to the entry of judgment. The service was made by a deputy sheriff, who returned that he had personally served such summons and complaint on the defendant wife, and had served on the defendant husband by leaving copies of said summons and complaint at the house of his usual abode with the defendant wife, she being a person of suitable age and discretion then residing therein. The service upon the husband was regular, and in one of the methods authorized by statute. Nor did the defendant wife deny that the return was correct as to service upon herself, her only excuse for failing to answer being that she did not read the summons and complaint when they were left in her hands, subse
There were also affidavits of other members of the family to the effect that but one copy of the summons and complaint was left 'with Mrs. Wisted, but it would have been much more satisfactory and convincing if this had been stated by the person upon whom service was actually made, instead of by persons who had very little opportunity for knowing the facts. And there were other matters appearing in regard to the service, which, taken into consideration with what has been stated, indicate very clearly that, had the court held with the defendants, and granted their motion, its action would have been wholly unwarranted, and reversible, because an abuse of the sound legal discretion which it must exercise in cases of this kind. An officer’s return cannot be impeached by means of equivocal and evasive affidavits, and, to set aside and vacate a judgment on the ground that such a return is false, the proof of its untruthfulness must be positive, satisfactory, and convincing. Jensen v. Crevier, 33 Minn. 372, 23 N. W. 541.
2. On the undisputed facts the proposed answer was without merit.
The defendant husband was the owner of two adjoining city lots, one numbered 61 and the other 63. Before purchasing lot 63, he had built a dwelling house on 61, and made it his homestead. After purchasing 63, he built an addition to his dwelling, mostly on 61 but in part on 63. He then erected a large house on the lot last mentioned, which was occupied by tenants. With his family he continued to reside in the dwelling first built, and in July, 1893, he made an assignment under our state insolvency laws for the benefit of all
From this statement of the facts it is obvious that the proposed answer, through which defendants attempted to assert a homestead right in lot 63 when the assignment was made, was wholly devoid of merit. In fact it would be difficult to conceive of an answer less meritorious than that accompanying the motion, when the actual facts are presented. The defendant husband selected his homestead, as he had a right to do, when he made the inventory, by omit
Order affirmed.