Carlson v. Carlson

• Decision Date: 16 May 1892
• Citation: 49 Minn. 555
• Parties: CHARLES CARLSON <I>vs.</I> PETER CARLSON <I>et al.</I>
• Court: Minnesota Supreme Court

49 Minn. 555

CHARLES CARLSON vs. PETER CARLSON et al.

Supreme Court of Minnesota.

Argued April 25, 1892.

Decided May 16, 1892.

Appeal by defendants, Peter Carlson, Swan Carlson, and Aaron Olson, from an order of the Municipal Court of the City of Duluth, Morris, J., made January 14, 1892, denying their motion to set aside a judgment against them.

The plaintiff, Charles Carlson, obtained judgment in the Municipal Court of Duluth on June 2, 1890, against defendants for $198.61 upon contract. The defendants were served with summons, but did not appear or answer. On November 24, 1891, the two Carlsons moved that court on affidavits to correct the judgment, and reduce the amount to $18.50. This motion was denied. On December 1, 1891, all the defendants moved the court to vacate the judgment, and for such further relief as to the court should seem meet. This motion was denied. On December 30, 1891, the defendants again moved that court to vacate the judgment. This motion was also denied, and from this denial this appeal is taken. No affidavit of merits or proposed answer was presented on any of these motions.

W. Hammons and J. A. Payne, for appellants.

John Jenswold, Jr., for respondent, cited:

COLLINS, J.

Defendants, three in number, appeal from an order denying their motion to set aside and vacate a judgment entered against them, for want of answer, in the month of June, 1890. In November, 1891, two of these defendants moved the court, on affidavits and all files and records, to modify the judgment as to them by materially reducing it in amount, which motion was denied. Afterwards, in the month of December, all of the defendants, on the files and records and other affidavits, moved the court to vacate and set aside the judgment, and this motion was denied. Later, in January, 1892, the same defendants, on the files and records and on affidavits which did not substantially differ from those previously used, again moved the court to vacate and set aside the judgment. The order denying this motion is the one appealed from, and it must be affirmed. It is not improbable, as urged by counsel for respondent, that several reasons may be given in justification of the order appealed from; but, if no other existed, it is sufficient to say that the court had previously passed on a motion of the same import, based, practically, on the same grounds, when called upon to consider that now before us, and that this point was raised by respondent's counsel on the...