122 Minn. 187 | Minn. | 1913
This appeal is by plaintiffs from an order of the district court for Bamsey county setting aside orders and judgments theretofore ■entered affecting the rights of defendant State Bank of Halstad, and permitting said defendant to answer.
The action was originally brought by plaintiff against State Bank of Culbertson as defendant, to recover on a check for $1,760 given August 10, 1906, by one P. J. Naeey to the order of C. C. Armstrong, and indorsed by Armstrong and delivered to plaintiffs prior to March 1, 1912. The check was given by Naeey on the bank of Culbertson, in which he had funds on deposit, in payment of horses Bought from Armstrong. Written across the face of the check were the words “To be applied on paper held by B. B. Larson, if found
November 9, 1912, the State Bank of Halstad, upon affidavits to show its right to the $1,760, and to excuse its default, gave notice of a motion to be relieved of its default and permitted to answer in the case. Plaintiffs opposed the granting of this relief, and presented affidavits in opposition. The court thereupon made the order appealed from.
We need not go into detail in regard to the showing of merits made in the affidavits. It is sufficient to say that the Halstad bank claimed the money under the words “To be applied on paper held by B. B. Larson, if found correct.” Its right to the money depended largely, if not wholly, upon whether, at the time the check was given to Armstrong, the latter was indebted to Larson on notes he had
It is contended by plaintiffs that it was an abuse of discretion on the part of the trial court to relieve respondent from its default.
It is argued that respondent lost nothing by reason of its failure to answer, and that plaintiffs are placed at a decided practical disadvantage in being forced into a contest with the Halstad bank. It is true no doubt that it is a disadvantage to plaintiffs to be obliged to litigate their claim to the money, instead of being allowed to hold it without having the right to do so determined in a trial. It is true also that it does not appear to be their fault that the Halstad bank was ordered or permitted to become a party to the case, or that they are in any way to blame for the bank’s failure to answer. But neither of these circumstances is an unusual one in a case of this kind. The contention that respondent lost nothing by the judgment against it which was vacated, is based upon the proposition that it could still try the question of its right to the money in the action in Norman county. The affidavits show that the defendant in that case, the State Bank of Culbertson, a Montana corporation, filed a supplemental answer setting up its payment of the money into court in the Ramsey county case, and asking a dismissal. We are unable to hold that the order in this case authorizing the payment of the money into court and substituting the Halstad bank as defendant in place of the Culbertson bank, was not a valid order, or that the Halstad bank could ignore it and compel the Culbertson bank to submit to a judgment against it in the Norman county case. We think -it clear that respondent would lose its rights, if the judgment in the instant case had been allowed to stand. The case must therefore be viewed as the ordinary one involving a failure to answer a summons and complaint through inadvertence and excusable neglect.
The discretionary nature of an order of this kind is so well understood, that it seems-profitless to point out again the rules that
Order affirmed.