Woods v. Woods

16 Minn. 81 | Minn. | 1870

By the Court

Berry, J.

This is an appeal from an order opening the judgment entered in this case, and allowing the defendants to answer after the time limited by the statute. The application was by the terms of Section 105, Oh 66, Gen. Stat., addressed to the discretion of the court below, and unless palpable abuse of such discretion is made to appear, its exercise will not be disturbed. We discover no such abuse in this instance. The time for answering ex! pired Feb. 27th, judgment was entered March 21st, and the application for the order appealed from, which was in this case necessarily addressed to the judge of a district other than that in which the action was pending, was made April 9th. It appears that the money, to recover which the action was brought, had been deposited with the defendants as the proceeds of sales of property assigned by one Seaton to the plaintiff, by a common law assignment, in trust for the benefit of said Seaton’s creditors. It further appears that before this action was commenced, the sheriff, claiming that said assignment was void, had levied upon, or attempted to levy upon, and had demanded the money so deposited. It further appears that before the time for answering had expired, the defendants had served upon the plaintiff, notice of a motion to substitute the sheriff in their place, or to compel the plaintiff and the sheriff to interplead, which notice was accompanied by an offer to bring the money into court, to be disposed of as the court might determine. It further appears, that by stipulation of the attorneys for both parties, the motion for substitution or inter-pleader was siibmitted for decision to the judge of the second district, and that it had not been determined when the order appealed from was applied for. Under ‘these circumstances the defendants might very naturally expect that the judgment, which was entered without notice to them, would not be entered until the motion for substitution or interpleader was disposed of, though certainly it would have been better to have obtained a stay of proceedings. It further appears, that after the time for answering had expired, Seaton was adjudged a bankrupt in the United States District Court, and that under a warrant issued out of said court, and as messenger thereof, the marshal, by his deputy, made a demand upon the defendants for said money, as the property of such bankrupt. These matters are all set out in the affidavit upon which the application for the order appealed from was based, as well as in the proposed answer of the defendants. Whether, upon a hearing upon demurrer, they would be found to constitute a defense or not, we shall not stop to inquire. Certainly the answer is not frivolous; the questions raised by it are important, and present so much difficulty that they are not to be disposed of without argument and reflection, and when this is the case, we think that so far as an application for leave to answer depends upon the meritorious character of the defense proposed, the application should be granted, or at least the granting of such application, is not an abuse of discretion: On the whole, then, we are of opinion that there is nothing to show that the court abused its discretion, either because there was a lack of diligence on the part of the defendants, or because the defense was dearly without merit.

Appeal dismissed.