40 Minn. 463 | Minn. | 1889
This is an appeal from an order vacating and setting aside a judgment and subsequent proceedings thereon, and granting the defendant Blakeman leave to serve an answer in the ease. No specific rule can be laid down for the exercise of the discretion of the trial courts in such cases, and the appellate court, in reviewing their decisions upon such applications, will only look into the proceedings so far as to see whether there has been any abuse of discretion. Upon the whole record in this ease considered together, we are unable to say that the application was not meritorious, or that the order g^nting it was not within the reasonable discretion of the court. On the contrary, it would apparently have been a great hardship as well as injustice to the defendant Blakeman if the application had been denied. His mortgage upon the real estate in controversy, which he alleges was given for the purchase-money thereof, is entirely cut off by the proceedings in this action, of which he had no knowledge whatever. It amounts to $4,000, while plaintiff’s claim was adjudged to be $381, and the mortgaged premises are worth $8,000. The summons was served by publication, the affidavit for which alleges ignorance of the defendant’s residence. . No copy of the summons was mailed to or received by him, and by his affidavit it appears that he is a resident of the state of Massachusetts; that he had no information whatever of any of the proceedings until about the time of this application, which was made promptly, and evidently in good faith. It also appears that he had no knowledge whatever coneern
Order affirmed.