Jorgensen v. Boehmer

• Citation: 9 Minn. 166
• Parties: AXEL JORGENSEN vs. CATHARINE BOEHMER et al.
• Decision Date: 01 January 1864
• Court: Minnesota Supreme Court

9 Minn. 166

AXEL JORGENSEN vs. CATHARINE BOEHMER et al.

Supreme Court of Minnesota.

Appeal from order of district court, Carver County.

Points and authorities for respondents: —

A motion to set aside a judgment, and for leave to answer, is addressed to the discretion of the court, and an order granting the same is not appealable, except in cases of palpable abuse of the discretion possessed by the court. Myrick v. Pierce, 5 Minn. [65]; Swift v. Fletcher, 6 Minn. [550]; Merritt v. Putnam et al. 7 Minn. [493].

L. M. Brown and M. Sherburne, for appellant.

L. L. Baxter, for respondents.

McMILLAN, J.

This is an appeal from an order of the district court, setting aside a judgment as to the defendant Catharine Boehmer, and granting certain relief to the defendant William Boehmer, upon terms which appear in the order.

The summons in the action was served on the defendants, Catharine and William Boehmer, on the thirty-first day of July, 1862, as appears by the return of the sheriff of McLeod County. A notice of retainer was served by Frank Warner, attorney for defendants, the date of the service of which appears to be the 15th of August, 1862. Judgment was entered on the 23d of October, 1862, and on the 5th of August, 1863, execution was levied on certain real estate.

It appears from the affidavit of Catharine Boehmer, made on the 2d September, 1863, that, from the time of retaining her attorney until the date of the affidavit, she called frequently on her attorney, and was always informed by him that he had received no copy of the complaint, and that it would be improper to enter a judgment in the action until a copy was served upon him. It also appeared that the defendant William Boehmer, enlisted in the military service of the United States on the 20th of October 1862, and, at the date of the affidavit, had no knowledge of the entry of the judgment. By the affidavit of Mr. Warner, it appears that he had no knowledge of the entry of the judgment until May or June, 1863. The plaintiff, in his affidavit, states, that the defendant Catharine Boehmer, and one Bray, on the 7th of April, 1863, examined the record of the judgment, and knew and understood its contents and effect, and that William Boehmer was indifferent to this motion.

A motion for this relief was made and noticed for the 26th of September, 1863, and the hearing postponed till October 11, 1863, at which time it was denied, without prejudice, for insufficiency of the notice, and,...