37 Minn. 514 | Minn. | 1887
This was an appeal from an order refusing to set aside a judgment entered by default of defendant to answer. The grounds on which the motion was made — and they are the only grounds which can be considered on this appeal — were that an answer had been duly served within the time allowed by law, and that the judgment was taken against defendant through his inadvertence, surprise, and excusable neglect. The latter ground was within the sound discretion of the court below; the former presented a question of legal right. As to the service of the answer, the facts were : The plaintiffs’ attorneys resided at St. Cloud, the defendant’s attorneys, at Moorhead. The summons was served personally on November 17, 1883. On December.7th following, the attorneys for defendant caused a copy of the answer to be mailed at St. Paul, directed to the plaintiffs’ attorneys at St. Cloud, and the latter received it the following day, and on that day returned it for the reason that it was not mailed at the place of residence of the defendant’s attorneys. The answer was received the day after the last day for personal service, so that there was no service, unless it was a proper service by mail.
The statute (Gen. St. 1878, c. 66, § 75) provides: “Service by
On the other ground of the motion we see no reason to think the court below did not exercise its discretion judiciously. Had the defendant made timely application for leave to serve his answer, no doubt the court would have granted it. Although for a time after the attempt to serve the answer the defendant’s attorneys may have supposed, from conversations between them and the plaintiffs’ attorneys, that the latter would receive the answer, yet they were distinctly informed by the latter as early as May, 1884, that it would not be received. The judgment was not entered till August, 1885, and the defendant made no move in the matter till August, 1886. There is
Order affirmed.
Collins, J., by reason of his connection with the case in the court below, took no part in this decision. -