Duenow v. Lindeman

Decision Date02 May 1947
Docket NumberNo. 34339.,34339.
Citation27 N.W.2d 421,223 Minn. 505
PartiesDUENOW et al. v. LINDEMAN et al.
CourtMinnesota Supreme Court

Appeal from District Court, Sibley County; Joseph J. Moriarty, Judge.

Action by Anna Duenow and another against Walter Lindeman and another to enjoin defendants from obstructing a ditch and from interfering with plaintiffs in removing the obstruction. A default judgment was entered against defendants, and from an order denying their motion to vacate the judgment, defendants appeal.

Reversed, with directions to vacate the judgment and grant defendants leave to answer.

Philip L. Scherer, of Winthrop, for appellants.

Einar A. Rogstad, of Gaylord, and T. O. Streissguth, of New Ulm, for respondents.

PETERSON, Justice.

Defendants, having moved to vacate the judgment entered against them by default and for leave to answer, appeal from the order denying their motion.

There are three questions for decision: (1) Whether defendants can raise for the first time on appeal the question whether they were entitled under § 543.16 to notice of the proceedings in which the judgment was entered; (2) whether a default judgment is void for want of jurisdiction where the complaint alleges a cause of action for wrongfully interfering with the natural drainage and flowage of surface waters from plaintiffs' lands across defendants' lands into a drain way thereon for which defendants' predecessor in title had substituted part of the way a tile and open ditch of depth and width not described, and the judgment determines not that the plaintiffs were entitled to such a right of natural drainage and flowage of surface waters, but that they were entitled to an easement by prescription to drain the surface waters from their lands into the tile and open ditch on defendants' lands, to maintain the ditch at a depth of five feet and at the width of its original construction, and to repair and clean the same; and (3) whether defendants were entitled to relief from their default in not answering because of the fact that their reason for not answering was that they relied upon the advice of their attorney that an answer was not necessary because (a) the only matter involved in the litigation was plaintiffs' right to remove an obstruction to the flow of surface water through the tile and open ditch, which had in fact been removed by plaintiffs under the terms of a temporary injunction; (b) the trial judge had stated in open court upon the hearing of the motion for the temporary injunction that the complaint did not state a cause of action for permanent relief; and (c) under the circumstances plaintiffs were not entitled to any permanent relief.

The complaint alleges that plaintiffs' lands lie to the north and east of those of defendants; that the surface waters from plaintiffs' lands naturally drain and flow therefrom across those of defendants; that, while it is not expressly so alleged, the allegations of the complaint should be construed as alleging that the flow of the water across defendants' lands was through some sort of natural drain way for which their predecessor in title had substituted, about 26 years prior to the commencement of this action, a tile and open ditch part of the way along the course of the natural drain way for the purpose of more efficiently draining both defendants' and plaintiffs' lands; that defendants wrongfully obstructed the tile and open ditch by a deposit of hay and manure; and that as a consequence of such obstruction about 250 acres of plaintiffs' lands were flooded and rendered "worthless for crop[p]ing purposes." In their prayer for relief plaintiffs demanded that defendants be enjoined from obstructing the ditch and from interfering with plaintiffs in removing the obstruction that had been placed there.

At the commencement of the action plaintiffs moved for a temporary injunction authorizing them immediately to remove the obstruction. The summons, complaint, and notice of motion for the temporary injunction were served at the same time upon defendants. At the hearing of the motion, on July 3, 1944, defendants were present in court with their attorney and consented to the granting of the temporary injunction upon condition that plaintiffs should remove the obstruction at their own expense. An order granting the temporary injunction was made accordingly. It recited that it was based upon stipulations made in open court "and shall not be binding as to the final relief in this action." Acting under the temporary injunction, plaintiffs removed the obstruction.

Defendants did not answer, demur, or give plaintiffs written notice of their appearance. On October 17, 1944, the case came on to be heard as upon default. It so happened that defendants' attorney was present in the courthouse in connection with other business. He was requested to go before the trial judge, which he did. Thereupon the trial judge informed the attorney as to the nature and purpose of the hearing. Counsel stated to the judge that he doubted whether he had authority to represent defendants in the matter, but that on their behalf he objected to the taking of a default judgment against them for the reasons that the trial judge had stated upon the hearing of the motion for the temporary injunction that the complaint did not state a cause of action; that he, the attorney, had so informed defendants and that he had advised them that the only matter involved in the litigation was the right of plaintiffs to remove the obstruction from the ditch, which was disposed of by the temporary injunction and, acting thereunder, by plaintiffs' removal of the obstruction; that under the circumstances plaintiffs were not entitled to any permanent relief; and that an answer was not necessary. He made a motion for a continuance to give him an opportunity to confer with defendants and interpose an answer. The court granted him three days, but after further discussion this request was denied. Thereupon he withdrew, and the hearing proceeded. Findings were made in favor of plaintiffs. On October 19, 1944, judgment was entered.

The judgment determined that prior to 1918 the natural drainage of surface waters from plaintiffs' lands was over and across those of defendants; that defendants' predecessor in title had constructed the tile and open ditch part way across defendants' lands into which the surface waters from plaintiffs' lands drained; and that plaintiffs had acquired by prescription a right or easement upon defendants' lands to maintain the tile and open ditch to a depth not to exceed five feet and to the width as originally constructed, without further statement as to what that fact was, and to repair and clean the ditch.

On January 31, 1945, defendants moved to vacate the judgment and for leave to answer. At the same time, they served a proposed answer specifically denying that plaintiffs had any right of natural drainage upon or across their lands. The motion, so far as it related to vacating the judgment, was based upon the ground that the judgment was void as attempting to determine that plaintiffs had a prescriptive right to maintain, repair, and clean the ditch, and so far as it related to leave to answer was based upon excusable neglect and perhaps surprise. Defendants on appeal claim that the motion was based also upon the ground that the judgment was irregular for failure of plaintiffs to notify them of the proceedings for judgment. This claim is based upon § 543.16, which provides:

"A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, after which he shall be entitled to notice of all subsequent proceedings therein. Until such appearance, notice of ordinary proceedings in the action need not be given."

Plaintiffs contend that, because defendants did not answer or demur and because they did not give plaintiffs written notice of their appearance, if any, defendants were not entitled to any notice. The contention is that this is a plain case of default.

The affidavit of defendants' attorney was to the effect that the only matter involved in the litigation was plaintiffs' right to remove the obstruction from the ditch; that the trial judge had stated upon the hearing of the motion for the temporary injunction that the complaint did not state a cause of action for any permanent relief; that the order granting the temporary injunction confirms this to be the fact; and that he advised defendants that because thereof it was not necessary for them to answer. Defendants by their affidavits showed that their attorney had informed them that the only matter involved in the litigation was plaintiffs' right to remove the obstruction from the ditch and that the trial judge had made the remark attributed to him; that their attorney had advised them that under the circumstances it was not necessary for them to answer; and that they relied on the advice. By the affidavits of several persons who heard what the trial judge said upon the hearing of the temporary injunction, plaintiffs contradicted defendants' attorney's version of the matter. But there was no contradiction of the facts, which consequently stand undisputed, that the attorney informed and advised defendants as they claimed and that, in reliance upon such information and advice, they did not answer.

1. A party is not entitled to raise a question for the first time on appeal. It is undisputed that defendants did not answer, demur, or give plaintiffs written notice of their appearance. The question whether, notwithstanding defendants' failures in these respects, they were entitled to notice of the proceedings in which default judgment was entered against them cannot be raised on appeal, because it was not raised below.

2. Whether the court had jurisdiction to render the judgment in question is to be determined by rules which we think are well settled. There can be no doubt that the court had jurisdiction of the...

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