Elsen v. State Farmers Mut. Ins. Co.

• Decision Date: 16 February 1945
• Docket Number: No. 33806.,33806.
• Citation: 17 N.W.2d 652,219 Minn. 315
• Parties: ELSEN v. STATE FARMERS MUT. INS. CO. et al.
• Court: Minnesota Supreme Court

17 N.W.2d 652

219 Minn. 315

ELSEN v. STATE FARMERS MUT. INS. CO. et al.

No. 33806.

Supreme Court of Minnesota.

February 16, 1945.

Appeal from District Court, Hennepin County; P.W. Guilford, Judge.

Action by Clarence Elsen, a minor, by Peter G. Elsen, his father and natural guardian, against the State Farmers Mutual Insurance Company and another for injuries to minor plaintiff sustained when he was struck by an automobile. From an order vacating a dismissal with prejudice and a prior approval of a settlement of the action on the ground of mutual mistake, defendants appeal.

Affirmed.

F.H. Durham and A.M. Lystad, both of Minneapolis, and Moonan & Moonan, of Waseca, for appellants.

Gillette & Meagher and B.B. Markham, all of Minneapolis, for respondent.

LORING, Chief Justice.

This is an appeal from an order vacating a dismissal with prejudice and a prior approval of a settlement for a minor's personal injury action on the ground of mutual mistake. The order also placed the case on the calendar for trial. It was held to be an appealable order in Elsen v. State Farmers Mut. Ins. Co., 217 Minn. 564, 14 N.W.2d 859.

July 2, 1934, plaintiff, then nine years of age, was struck by an automobile owned by defendant State Farmers Mutual Insurance Company and driven by the defendant B. E. Benson. Both legs were injured above the knee. Plaintiff was hospitalized for a period of six months, at the end of which his physician made the following statement in writing: "This is to certify that I treated Clarence Elsen on July 2nd for the following injuries: Fractures both legs above the knees, multiple cuts and bruises about the face, multiple bruises over the chest and right shoulder, and a cut on the right thumb. On examination December 21st I find that he has made complete recovery. There apparently is not the slightest disability of the legs. The fractures have healed perfectly. He can run and jump and play as any other boy his age."

The father made a settlement in behalf of the boy, to effectuate which a suit was brought against the company. There was filed with the complaint a petition reciting that the parties had agreed upon a settlement for the damages suffered by the minor and asking the approval of the court. Since plaintiff had no counsel, the attorney for defendant prepared all papers. December 31, 1934, the court by order approved the settlement and authorized petitioner to sign a proper release in behalf of the minor and to dismiss the action. On the same day the action was dismissed with prejudice.

Subsequently, the boy experienced great pain in his legs. He had an operation on his left leg in July 1936 and another one on the same leg in 1941. In 1942, he had an operation on his right leg. He wore a brace for about three months after each operation. There is evidence tending to show that the growth of the legs was affected as a result of the accident.

November 24, 1943, the father petitioned the court in behalf of his son for an order vacating the judgment of dismissal and the approval of the settlement made in 1934 on the ground of mutual mistake as to the nature of the minor's injuries. This was granted on the basis of "mutual mistake in the making of the said order and the execution of the said dismissal."

Defendants contend that the application was barred by Minn.St.1941, § 544.32, Mason St.1927, § 9283. They challenge the vacation of the order of approval on the ground of mutual mistake and set up laches, estoppel, and ratification.

1. Defendants contend that the application to vacate the judgment came too late because not made within one year from the entry of judgment. They invoke section 544.32, which provides that the court at any time within one year after notice thereof, in its discretion, "may relieve a party from any judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; or may, for good cause shown, modify or set aside its judgments, orders, or proceedings, whether made in or out of term and may supply any omission in any proceeding, or in the record, or by amendment conform any proceeding to the statute under which it was taken." That part of the quoted section which precedes the semicolon was in the statute prior to the enactment of L.1876, c. 49, and referred only to the excusable delinquencies of the moving party. The vacation of the judgment here under consideration does not fall within that provision, because the action of the court was based upon mutual as distinguished from unilateral mistake. The quoted provision following the semicolon was obviously incorporated into the section by L.1876, c. 49, solely for the purpose of lifting the rather stringent common-law rule, as laid down in Grant v. Schmidt, 1875, 22 Minn. 1, limiting the control of the court upon its orders or judgments to the term at which such orders or judgments were entered. Beckett v. Northwestern Masonic Aid Ass'n, 67 Minn. 298, 69 N.W. 923. It was enacted to liberalize, not to restrict, the court's powers. The sole objects of its provisions were the orders and judgments of which control was lost under the common-law rule with the expiration of the term. If the judgment and stipulation in the case at bar does not fall within the class of judgments subject to the common-law rule, we are of the opinion that it does not fall within the scope of the second provision of the statute above referred to. Under the common-law rule, which applied strictly to judgments in controversial cases, there was a clear distinction between judgments recovered in contested proceedings and those entered by consent without contest.

In Hodgson v. Vroom, 2 Cir., 1920, 266 F. 267, 268, 269, where the court clearly pointed out this distinction, it said: "* * * The distinction between a decree in common form and a consent decree is the difference between a consent to submit a case to the court for decision and a consent as to what the decision shall be. When there is a consent as to what the decision shall be, the decree is a `mere agreement of the parties under the sanction of the court, and is to be interpreted as an agreement.'" See, also, Wilson v. Haber Bros. Inc., 2 Cir., 1921, 275 F. 346.

In the case as bar, plaintiff was not represented by counsel, and counsel for defendants took charge of the proceedings and drafted the pleadings, stipulation, and order of approval of the court.

Within the definition in the Hodgson case, the judgment of dismissal herein was a "consent" judgment, because the stipulation of the parties agreed upon what the judgment should be, and it became effective upon sanction of the settlement by the trial court. Notwithstanding that approval, it was still a judgment by consent, because it was the result of an agreement as to what the decision should be, and it was in the same class as judgments by confession, which remain indefinitely within the court's control, apparently, because the causes were uncontested. In re Koehler's Estate, 102 N.J.Eq. 133, 140 A. 15. In re Estate of Simon, 187 Minn. 399, 246 N.W. 31, is not in point. Therefore, the judgment in the case at bar fell without the provisions of section 544.32, and a motion to vacate it is not limited by the time therein stated.

2. From the affidavits of the doctors it conclusively...