Clark v. Lee

• Decision Date: 26 July 1894
• Docket Number: 8768
• Citation: 59 N.W. 970,58 Minn. 410
• Parties: Matt Clark v. Mary B. Lee
• Court: Minnesota Supreme Court

59 N.W. 970

58 Minn. 410

Matt Clark v. Mary B. Lee

No. 8768

Supreme Court of Minnesota

July 26, 1894

Submitted on briefs July 17, 1894

Appeal by plaintiff, Matt Clark, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered January 27, 1894, against him that he take nothing by this action.

On July 26, 1890, the defendant, Mary B. Lee, commenced an action against Matt Clark and obtained judgment by default November 28, 1890, for $ 4,989.71. On August 6, 1892, he made a motion to set aside the judgment and be allowed to answer, but was denied. Lee v. Clark, 53 Minn. 315. He then commenced this action November 12, 1893, under 1878 G. S. ch 66, § 285, to set aside and vacate that judgment on the ground that she had in her verified complaint in that action stated falsehoods material to that action. He states nothing in his complaint in this action excusing his failure to appear and defend that action. The defendant demurred to this complaint. The court sustained the demurrer and judgment was entered in her favor. He appeals.

Nethaway & Gillen, for appellant.

The trial court sustained the demurrer on the ground that 1878 G S. ch. 66, § 285, does not apply to default judgments. In this plaintiff submits there was error. The complaint is sufficient on equitable grounds independent of the statute. Herbert v. Herbert, 47 N.J.Eq. 11, and 49 N.J.Eq 70; Tomkins v. Tomkins, 11 N.J.Eq. 512; Johnson v. Coleman, 23 Wis. 452; Moore v. Gamble, 9 N.J.Eq. 246; Reed v. Harvey, 23 Ark. 44.

Penney Welch & Haynes, for respondent.

The question is, whether or not it affirmatively appears from the complaint that the judgment obtained in November, 1890, was obtained by means of the perjury, subornation of perjury, or any fraudulent act, practice, or representation of Mary B. Lee. There is no allegation in this complaint that he did not know the allegations of the complaint in the former action, or that he did not have full opportunity to answer it before the judgment was obtained. Bomsta v. Johnson, 38 Minn. 230; Hass v. Billings, 42 Minn. 63.

Canty, J. Buck, J., absent, sick, took no part.

OPINION

Canty, J.

This is an appeal from a judgment entered on an order sustaining a demurrer to the complaint on the ground that it does not state a cause of action.

This plaintiff was, in 1883, the agent of defendant to sell for her a quantity of pine logs. Plaintiff, as such agent, sold the logs to one Christopher Clark, and the purchase price was secured by a note for $ 8,000, made and delivered by the purchaser to defendant, and secured by a mortgage on the real estate of such purchaser. In 1884 this defendant, Lee, commenced an action in the district court of Houston county to foreclose this mortgage, and in 1886 judgment of foreclosure was entered adjudging the sum of $ 2,993.72 to be due on the mortgage. On August 4, 1887, this judgment was paid in full by said Christopher Clark, and satisfied by said Lee.

On July 26, 1890, said Lee commenced an action against this plaintiff in the district court of Hennepin county, in the complaint in which she alleged that he received a large quantity of logs, as her agent, to sell on commission; that the logs were "of the value and agreed price of $ 7,404.82, over and above commission to be paid" to him, and that he sold all of the same as such agent; "that defendant has accounted for and paid over to plaintiff, on account of such sales, the sum of $ 3,937.70, and no more, and defendant is now indebted to plaintiff thereon in the sum of $ 3,467.12, together with interest thereon since the 1st day of September, 1884." On November 28, 1890, judgment by default was entered in this action against the defendant therein, this plaintiff, for the sum of $ 4,989.71.

The action at bar was commenced November 18, 1893, under 1878 G. S. ch. 66, § 285, to set aside this judgment on the ground that it was obtained by fraud and perjury.

The complaint in this action sets forth all the facts above recited, and alleges that "all of the facts herein set forth, except placing of said logs in plaintiff's possession, and the sale...