Bogart v. Kiene

• Decision Date: 17 January 1902
• Docket Number: 12,820 - (157)
• Citation: 88 N.W. 748,85 Minn. 261
• Parties: D. L. BOGART v. HENRY KIENE
• Court: Minnesota Supreme Court

88 N.W. 748

85 Minn. 261

D. L. BOGART v. HENRY KIENE

Nos. 12,820 - (157)

Supreme Court of Minnesota

January 17, 1902

Appeal by defendant from an order of the district court for Freeborn county, Kingsley, J., denying defendant's motion to vacate a judgment, theretofore entered in the action by default, and for permission to interpose an answer. Affirmed.

SYLLABUS

Attachment against Nonresident -- Notice -- Opening Judgment.

In an action against a nonresident of the state to recover damages for the breach of a contract for the sale of real property an attachment was duly issued and levied upon the property of defendant in this state, and the summons was served upon him by publication. A copy of the summons was mailed to defendant, and received by him in due course of mail. He had actual notice and knowledge of the pendency of the action but took no steps to interpose an answer, or otherwise protect his rights, until after the entry of the judgement against him, some four months subsequent to the commencement of the action. Held, that his application to open the judgment and for leave to defend, made under G.S. 1894, § 5206, was properly denied. Defendant lost his right to be permitted to come in and defend as a matter of right by his failure, with full knowledge of the pendency of the action, to interpose an answer in proper time. If he had any excuse for failing to answer, his application should have been addressed to the discretion of the court, under section 5267, presented with affidavits excusing his default.

Filing -- What Constitutes.

Depositing a paper for filing with the proper officer at his office constitutes a filing thereof, and the indorsement thereon by the officer of such filing is but evidence of the fact. Affidavit for the publication of the summons in this action held properly filed.

J. Van Valkenburg, for appellant.

Shepherd & Catherwood, for respondent.

OPINION

BROWN, J.

This action was brought to recover damages for the breach of a contract to convey certain real estate. Defendant is a nonresident of the state, and the summons was served by publication, a copy thereof having been duly mailed to him at his place of residence in the state of Iowa. At the time of the commencement of the action plaintiff caused a writ of attachment to be issued, under which certain real property situated in Freeborn county, and owned by defendant, was attached and levied upon. The action was commenced December 7, 1900, and judgment was duly entered against defendant April 25, 1901, on default, he having failed to appear and answer. Thereafter, and on May 29, 1901, defendant moved the court below to set aside the judgment and for leave to answer and defend in the action. The motion was denied, and defendant appealed.

The motion was made under the provisions of G.S. 1894, § 5206, and defendant insists that he was entitled to the relief asked for as a matter of right, and that the court erred in denying his motion. There is no question, under the decisions of this court, that an application for leave to defend, where default judgment has been entered on service of the summons by publication, is not addressed to the discretion of the court; but the relief is granted as a matter of right where the application is seasonably made. If defendant makes a proper motion to set aside the judgment, is not guilty of laches in doing so, and presents an answer setting forth a good defense to the action, the judgment is set aside, and defendant let in to defend, as a matter of right, and not of discretion; but, if he be guilty of laches and unnecessary delay in making his application, he loses his absolute right to be relieved from his default, and can be relieved only by excusing the default, and addressing his application to the discretion of the court under section 5267. Lord v. Hawkins, 39 Minn. 73, 38 N.W. 689; Boeing v. McKinley, 44 Minn. 392, 46 N.W. 766; Nye v. Swan, 42 Minn. 243, 44 N.W. 9; Bausman v. Tilley, 46 Minn. 66, 48 N.W. 459; Fifield v. Norton, 79 Minn. 264, 82...