Bundermann v. Bundermann
| Decision Date | 03 May 1912 |
| Docket Number | 17,587 - (62) |
| Citation | 135 N.W. 998,117 Minn. 366 |
| Parties | ROBERT BUNDERMANN v. AMELIA BUNDERMANN |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the district court for Otter Tail county, entered pursuant to the order of Baxter, J after defendant's motion to open the default judgment and to be allowed to defend had been denied, Nye, J. Reversed.
Divorce -- service of summons.
In divorce actions, where the summons is served personally out of the state, it is not a prerequisite that there be either the return of the sheriff or the affidavit of plaintiff or his attorney, required under R.L. 1905, § 4111.
Opening default.
Held that the trial court erred in refusing to grant defendant's application to open a default and for leave to answer.
Leonard Eriksson, for appellant.
M. J. Daly, for respondent.
This is an appeal by defendant from a judgment of the district court of Otter Tail county, granting plaintiff a divorce, after denying defendant's motion to vacate the order for judgment in the action and for leave to answer. The action was for a divorce on the ground of desertion, and the summons was served personally on defendant in Chicago, Illinois, on January 22, 1910. Due proof of service was made, and by order the court limited the time to answer to April 6, 1910. Defendant did not answer or appear, and on April 11, 1910, the case was heard, and a decision and order for judgment in favor of plaintiff filed. Judgment had not been entered on the decision at the time the application of defendant for leave to answer was made and heard.
This application was based on affidavits of defendant and her attorney which tended to prove the following facts: Plaintiff and defendant were married in Otter Tail county, August 31, 1904. Plaintiff was a widower of 53, and resided in the county. Defendant was 54, and lived in Chicago. After the marriage they resided for a short time at Perham, in said county, but moved to Chicago during the year 1904. Plaintiff shortly thereafter returned to Otter Tail county, and has since lived there; defendant remaining in Chicago. In July, 1907, plaintiff brought an action for divorce, alleging desertion. Defendant answered, denying the charge. The case was tried in September, 1908, and on November 27, 1908, a decision and order for judgment in favor of defendant was made and filed. No judgment was ever entered on this decision, but December 20, 1909, pursuant to a stipulation between the then attorneys for the parties, an order was entered dismissing the action. The present action for divorce was therefore commenced three weeks after the order of dismissal. Defendant admitted the receipt of the summons and complaint in the second action, but was unable to read English, and supposed the papers had relation to the former case, which she knew had so recently been decided in her favor. She did not consult an attorney or a friend, but claims to have written a letter to the judge who had tried the case, and to have received no reply. She did not discover that the action was begun until late in December, 1910, when, in answer to a letter to the judge asking why she had received no money from her husband, she was informed that the second suit for divorce had proceeded to trial and decision.
Immediately after learning these facts, defendant retained her present counsel, who promptly made on her behalf the motion for leave to answer. The only showing made by plaintiff against the granting of the motion was in denial of his own wealth and defendant's poverty,...
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