Altmann v. Gabriel

• Decision Date: 15 July 1881
• Citation: 28 Minn. 132
• Parties: MARZEL ALTMANN <I>vs.</I> JOHN GABRIEL.
• Court: Minnesota Supreme Court

28 Minn. 132

MARZEL ALTMANNvs.

JOHN GABRIEL.

Supreme Court of Minnesota.

July 15, 1881.

Appeal by plaintiff from an order of the district court for Brown county, Cox, J., presiding, setting aside a judgment by default, and giving leave to answer.

John Lind, for appellant.

C. R. Davis and Francis Baasen, for respondent.

DICKINSON, J.

This is an action for slander, commenced in the county of Brown, in July, 1879, by the personal service of the summons and complaint upon the defendant. The defendant did not interpose any answer or appearance in the action; and in November, 1879, the cause, upon the default of the defendant, was heard before the court, and a judgment ordered against the defendant for the sum of $500, which was entered on the sixth day of December, 1879. More than eleven months after the entry of this judgment, the defendant moved the court, upon affidavits, to set aside his default and open the judgment, with leave to interpose an answer. After hearing the motion, which was opposed by counter-affidavits on the part of the plaintiff, the court made an order, upon terms, setting aside the default and allowing the defendant to answer. From this order this appeal is taken by the plaintiff.

The affidavits upon which defendant's application was made, set forth that he was very poor, and unable to employ counsel; that he was a foreigner by birth, and unacquainted with the usual proceedings of courts, but supposed he could appear on the trial of the cause, and defend without the aid of an attorney; that both plaintiff and defendant were residents of the county of Nicollet when the action was commenced, and that he believed that the district court for Brown county had no jurisdiction in the action; that, on the day of the trial of the action, he did consult an attorney, residing in Brown county, by whom he was then informed that, not having answered, he could not appear on the trial, and that if, upon application, the court should set aside his default, it might be only upon terms of payment of costs. The affidavits further state that, the defendant being without money or friends, he delayed the application for relief until he should have earned money to pay the necessary costs. The counter-affidavits on the part of the plaintiff dispute the allegations of poverty, and tend to show that only his disregard and indifference in respect to the action induced his default, and that he intended to shield his property from execution in case judgment should be recovered against him.

The question for determination is whether the court, in making this order, clearly exceeded the limits of judicial discretion. That the court doubted the propriety of granting the motion is apparent from this language in the order appealed from: "The laches of the defendant, in not making...