Baxter v. Chute

• Decision Date: 13 June 1892
• Parties: BAXTER v CHUTE ET AL.
• Court: Minnesota Supreme Court

50 Minn. 164

52 N.W. 379

BAXTERvCHUTE ET AL.

Supreme Court of Minnesota.

June 13, 1892.

(Syllabus by the Court.)

The failure of a defendant to answer in time may be excused, and relief afforded, although the default occurred from the erroneous advice of his attorney.

Appeal from district court, Hennepin county; HICKS, Judge.

Action by Lucy Baxter against Jerome A. Chute and others to recover on promissory notes. Judgment for plaintiff. Defendant Edwin Cooley appeals. Reversed.

A. D. Polk, for appellant.

Brooks & Hendrix, for respondent.

DICKINSON, J.

This action is prosecuted to recover upon several promissory notes executed to the plaintiff by the defendants Chute, and across the back of which also the defendant Cooley wrote his name before the delivery of the notes, for the accommodation of the defendants Chute, as may be considered for the purposes of this appeal. As to the plaintiff, Cooley thereby assumed the liability of a maker, while as to the other defendants he occupied the position of a surety. The defendants Chute interposed an answer setting up the defense of usury. The defendant Cooley had previously consulted an attorney, by whom he was advised that if the other defendants should answer it would not be necessary for him (Cooley) to do so, and that the plaintiff could not take judgment against him for a greater amount than should be recovered against his codefendants. Relying on this advice, and learning that his codefendants had interposed the defense of usury, Cooley did not defend, and judgment was entered against him for default of an answer. Learning this fact, Cooley moved promptly, within some six days after the expiration of the time for answering, to have the judgment set aside, and that he be allowed to interpose by answer the same defense which had been made by his codefendants. This motion was denied, and Cooley took this appeal from the order refusing such relief. The action had not been tried against the other defendants when this appellant sought such relief from his default, and, indeed, issue was not joined therein until some days thereafter, when the plaintiff pleaded in reply to the answer. As we understand the case, the plaintiff must be regarded as having waived on the hearing of the motion all defects in the motion papers, including the fact that the answer of the defendants Chute, setting forth the defense which this appellant sought leave to interpose, was not embraced in such papers. It seems to be apparent that the only question submitted for the decision of the district court was as to whether, assuming that the appellant showed that he had a defense on the merits, his failure to plead it in time was excused. The court seems to have considered that he was not entitled to relief, because his neglect to answer was induced solely...