Savings Bank v. Authier

52 Minn. 98 | Minn. | 1892

Dickinson, J.

This is an appeal from an order setting aside a judgment entered upon default against the above-named respondent and another in the district cour.t.

The court was right in setting aside the judgment, for no jurisdiction over the defendant had been acquired by a service of the summons upon him. It was shown so as to leave no room for doubt that the service, upon proof of which the judgment was entered, was really made upon another person, — one John E. Dailey. The latter, discovering the mistake, mailed to the defendant the copy of the summons served upon him, with a letter explaining the matter. The copy so sent by mail was received by the defendant before the entry of of the judgment. Within a few days after the entry of the judgment the application was made to set it aside.

The facts as to the service being as above stated, it is perfectly useless to try to sustain the judgment, or to oppose the order setting jit aside. J-The transmission of the summons by mail was wholly unauthorized by law as a mode of service, and of no more effect, although the defendant receivedit, than would have been his finding it in the street if it had been lost. \ The statute not only prescribes that service shall bé made by delivering a copy thereof to the defendant jcexsennlly, (special provision being, however, made for a different mode of service at the house of his usual abode.1) but it in terms declares that the provision with reference to the service by mail of notices and other papers in actions shall not apply to the service of a summons. 1878 G. S. ch. 66, §§ 59, 78.

t^The judgment being void for wa,nt of jurisdiction, the respondent was entitled to have it set aside, even though he made no showing of a meritorious defense?^ Heffner v. Gunz, 29 Minn. 108, (12 N. W. Rep. 342.)

As the judgment might properly have been set aside without condition, the appellant has no reason to complain that conditions were imposed upon the respondent not prejudicial to the appellant. He cannot complain that the respondent was allowed to answer, interposing any defense which he might then have.

Order affirmed.

(Opinion published.'53 N. W. Rep. 812.)