Rhodes v. Walsh

58 Minn. 196 | Minn. | 1894

Gilfillan, C. J.

The summons was served on all the defendants but Lockwood, March 20, 1893, and on him March 21st. On the 22d, Horton and Boggs procured an order to show cause, returnable on the 25th, why the service of the summons should not be set aside on the ground that when served they were members of the legislature. April 7th an order was made setting it aside. April 8th the other defendants procured a similar order, returnable April 12th, and on that day an order was made setting aside the service as to all the defendants but Bjorge, Wells, and Scheffer, and these three thereupon answered. The plaintiff appealed to this court from the orders setting aside the services, and they were reversed. Rhodes v. Walsh, 55 Minn. 542, (57 N. W. 212.) The mandate from this court went down January 2, 1894, and thereupon both sides acted with commendable promptness. On the 2d plaintiff filed an affidavit of no answer, procured an order of reference, and submitted his proofs to the referee. On the 3d the referee’s report was filed, and on the same day plaintiff caused judgment to be entered. On the same day defendants procured an order to show cause, returnable the 6th, why the judgment should not be vacated, and the defendants allowed to answer. The application seems to have been on the ground that the time to answer had not expired. On the 4th defendants served an answer. On the 11th their application to vacate the judgment and to be allowed to answer was denied without prejudice. On the 13th they renewed the application under 1878 G-. S. ch. 66, § 125. The motion was heard on the 20th, and granted February 8th, and the answer accordingly served February 12th. From the order granting' it this appeal is taken.

Such an application, being addressed to the sound discretion of the court below, the only question is, did-it fairly.exercise that discretion? ,

It is claimed that it did not— , .'

•First, because it was not shown the judgment was taken through defendants’ mistake, inadvertence, or surprise, and the neglect to answer in time was not excused.

Second, because the answer proposed was insufficient.

Third, there was no sufficient affidavit: of merits.

After the orders were made setting aside the service, and until the mandate of this court was sent down, the defendants could hardly be expected to answer. In what was done after the mandate was filed they were not chargeable with negligence.

As to Horton and Boggs, the time to answer did not expire before the service was set aside. As to the other defaulting defendants it expired pending their application to set aside the sen-ice.

The defendants might have procured an order extending the time to answer until after the final decision of the application to set aside. It was for the court below to determine whether they showed sufficient excuse for not doing so. The fact that before the time to answer expired that court had decided that civil process cannot be served on members of the legislature during its sessions; that there was a decision of the supreme court of Wisconsin, made' at a time when the law of Wisconsin was the law here, and other respectable authorities in support of that position, — brought the case fairly within the discretion of the' court, and made it a matter for it to conclusively determine.

The answer proposed makes a material issue upon the allegations of the complaint, to wit, as to the ownership of the property alleged to have been taken by defendants. It does not appear to be either sham or irrelevant, and the court might allow it to be interposed, so that any question of law upon it might be raised and disposed of in an orderly manner.

The answer was joint. The affidavit of merits was made by three of the defendants on behalf of all, each swearing that he is personally familiar with all the facts in the cause. It was for the court -below to determine whether it was a compliance with the rules of that court.

Order affirmed.

Collins and Buck, JJ., took no part.

(Opinion published 59 N. W. 1000.)