Doherty v. Ryan

• Decision Date: 28 November 1913
• Citation: 144 N.W. 140,123 Minn. 471
• Parties: DOHERTY v. RYAN et al.
• Court: Minnesota Supreme Court

123 Minn. 471

144 N.W. 140

DOHERTY

v.RYAN et al.

Supreme Court of Minnesota.

Nov. 28, 1913.

Appeal from District Court, Ramsey County; William Louis Kelly, Judge.

Action by Michael J. Doherty against William Ryan and others. A motion by defendant Michael Cannon to open the judgment entered and for leave to answer was granted conditionally, and he appeals, assigning error in the imposition of unjust conditions. Reversed and remanded, with directions.

Syllabus by the Court

In opening an interlocutory judgment in an action for partition and granting leave to answer upon the application of a nonresident, served with summons by publication, the court may impose terms under section 7739, Gen. St. 1913, although the applicant has not been guilty of laches.

But the court is not authorized to impose terms which deprive such applicant of any substantial right as claimed under the issues of his proposed answer, or terms which are burdensome, in a case where there is no laches and the application is made within the year after entry of judgment.

The terms or conditions imposed by the court examined, and held to conflict with the above rule.

Upon the hearing of the application to have a judgment opened as a matter of right under the section cited, the court should not try the merits of the issues presented by the proposed answer. R. A. Walsh, of St. Paul, for appellant.

Frederick G. Ingersoll and Michael J. Doherty, both of St. Paul, for respondent.

HOLT, J.

Action in partition. The complaint sets out that plaintiff is the owner of an undivided one-half of a lot in the city of St. Paul; that the lot is worth $3,000; that various defendants named have undivided interests therein, among whom is the defendant Michael Cannon, claiming, as sole heir of Honora Cannon, his deceased wife, an undivided one twenty-eighth interest, which she derived from her father, Thomas Fitzgerald, who died seised of an undivided one-fourth of the lot; also that said Michael Cannon claims to be the owner of an undivided three-fourths of the lot acquired by said Honora Cannon in her lifetime through a tax sale, but avers that such title is invalid; and, further, that the city of St. Paul holds a judgment upon an assessment against the lot for the grading of a street in the sum of $272.43. Four different attorneys appeared for seven of the defendants owning undivided interests, besides the city attorney for the city of St. Paul. Service upon the defendant Michael Cannon, a nonresident, was by publication. A trial was had. The court made findings that plaintiff was the owner of an undivided one-half of the lot, subject to the lien of the city, that the property was so situated that a division could not be had without a material injury to the owners, and ordered judgment appointing two referees to make a sale of the lot, to pay from the proceeds of the sale the expenses thereof and the costs of the action, then the lien of the city and any taxes and assessments coming due since the commencement of the action, then to pay plaintiff one half of the balance remaining, and bring the other half into court to abide the result of the further litigation between defendants. Pursuant to this decision a judgment was entered November 11, 1912. On May 10, 1913, Michael Cannon moved the court to open the judgment and for leave to answer, on the ground that he had been a nonresident of the state during the pendency of the action and had no knowledge thereof until May 6, 1913. The court granted the motion conditionally. Michael Cannon appeals, and assigns as error the court's action in imposing unjust terms as a condition upon which the default was to be opened.

[1] The appellant was permitted to answer upon compliance with one of these three conditions: (a) He must file a stipulation to accept and abide by the judgment already entered, in so far as it had been executed by a sale of the lot; or (b) he must pay into court, for disposition in this action, a sum of money sufficient to defray all the expenses of said sale, including the fees yet to be allowed by the court to the referees who made the sale under the judgment, and paying $10 costs to the attorneys for the plaintiff and defendants who appeared, except the city of St. Paul; or (c) he must file a stipulation disclaiming any right, title, and interest in the undivided one-half of the lot decreed by the judgment to be in plaintiff, and litigate with defendants his title to the other undivided one-half on paying $10 costs to the attorneys of the defendants (except the city of St. Paul) who have appeared.

In determining whether these terms are just, it must be borne in mind that the application to open the judgment and for leave to answer is by a nonresident upon whom summons was served by publication and who has been guilty of no laches. Appellant contends that the judgment sought to be opened is not a final judgment; therefore the court was not authorized, under section 7739, Gen. St. 1913, the statute governing this case, to impose any terms. Without deciding that the court, on an application to remove a default before the entry of judgment under this statute, is powerless to annex terms in granting the same, we...