City of Luverne v. Skyberg

• Citation: 211 N.W. 5,169 Minn. 234
• Decision Date: 26 November 1926
• Docket Number: No. 25660.,25660.
• Parties: CITY OF LUVERNE v. SKYBERG et al.
• Court: Supreme Court of Minnesota (US)

211 N.W. 5

169 Minn. 234

CITY OF LUVERNE v. SKYBERG et al.

No. 25660.

Supreme Court of Minnesota.

November 26, 1926.

Appeal from District Court, Rock County; L. S. Nelson, Judge.

Action by the City of Luverne against P. O. Skyberg and others on an official bond. From an order vacating a judgment for plaintiff and permitting certain defendants to interpose an answer, the City appeals. Modified and remanded.

Frank F. Michael, of Luverne (E. H. Canfield, of Luverne, of counsel), for appellant.

C. T. Howard, of Pipestone, and O. A. Lende, of Canby, for respondents.

HOLT, J.

The appeal is from an order vacating a judgment and permitting defendants to interpose an answer.

The situation disclosed by the record is in brief this: Defendant P. O. Skyberg was for many years the city treasurer of plaintiff, being last elected in April, 1925, at which time he gave a bond for the faithful discharge of his duties, the other defendants being sureties thereon. Skyberg absconded in the latter part of December following. The bond was in the sum of $150,000. Plaintiff claimed that he had $143,755.32 of its funds unaccounted for when he disappeared. Skyberg was also cashier of the National Bank of Luverne which was the depository of school and county funds, and bonded as such, some of the sureties being also among the defendants herein. It was found that Skyberg had so looted the assets of the bank that its doors were closed. When these facts became known the officers of the city, of the county, and of the school district called the sureties into conference, informing them that it was their duty as officers of the corporations named to take the necessary legal steps to enforce the obligations of the sureties on the bonds. The result was that respondents signed a writing admitting liability as sureties on the bonds, and agreeing within 15 days to confess judgment for the amount which might be due the city, county, and school district. A few days thereafter, on January 6, 1926, at another conference, plaintiff presented the summons and complaint herein to respondents, who signed a formal answer to the complaint admitting all the allegations thereof and consenting to the entry of judgment against them without the making of an application to the court. Judgment was so entered the same day by the clerk. On March 11, 1926, notice of motion to vacate the judgment and for leave to serve a proposed amended answer was given by respondents to be heard March 30th. The motion was based on the ground that the "judgment is irregular and contrary to law, and on the further ground that said judgment was entered through defendants' mistake, inadvertence, surprise, and excusable neglect in not knowing or appreciating the consequences thereof at the time and in not seeking counsel or advice in the premises."

Respondents not only signed, but verified the answer which refers to the complaint in such specific terms that the two may be considered one document, so far as respondent are concerned. But even conceding there is not such a strict compliance with section 9413, G. S. 1923, as to warrant the entry of judgment by confession, there was such an appearance, by respondents interposing an answer, that the court obtained jurisdiction to enter judgment. Section 9238, G. S. 1923, provides:

"A voluntary appearance by the defendant shall be equivalent to a personal service, unless the same be made for the sole purpose of attacking the jurisdiction."

Whether

or not the answer was verified is really of no consequence, for each respondent signed the same in person, and specifically authorized the clerk to enter judgment against him without making an application to the court therefor. There was no ground for the vacation of the judgment because of irregularity or want of jurisdiction to enter the same by the clerk. The judgment was valid in every respect.

In opening a judgment not void for want of jurisdiction or irregularity and permitting a defendant to have his day in court, the trial court is vested with large discretion. But there must be some reasonable excuse shown for defendant's failure to defend at the proper time, such as fraud by the other party or his own surprise, inadvertence, or excusable neglect. There was here...