Exley v. Berryhill

• Decision Date: 01 December 1886
• Citation: 36 Minn. 117
• Parties: GEORGE J. EXLEY and Wife <I>vs.</I> CHARLES J. BERRYHILL, impleaded, etc.
• Court: Minnesota Supreme Court

Page 117

36 Minn. 117

GEORGE J. EXLEY and Wife vs. CHARLES J. BERRYHILL, impleaded, etc.

Supreme Court of Minnesota.

December 1, 1886.

The plaintiffs brought this action in the district court for Ramsey county, to obtain the cancellation of certain deeds and mortgages held by the defendants, and for an accounting of moneys advanced by the defendant Berryhill to the plaintiffs and of moneys received by defendant Berryhill from, or for the account of, the plaintiffs. On March 27, 1886, upon leave of the court, the plaintiffs filed and served an amended complaint, and upon April 10, 1886, filed and served a supplemental complaint. Thereupon the defendant Berryhill moved that the complaint be required to be amended by striking out one or more of the causes of action therein alleged, which motion was, on April 26, 1886, denied by Simons, J. The defendant Berryhill, on April 27, 1886, gave notice of a motion to strike out certain portions of the complaint and for other relief. This motion was never heard. No answer having been served, the plaintiffs on May 15, 1886, made application to the court for a judgment as prayed for in the complaint, and at the same time the defendant Berryhill made application for leave to answer. The applications were heard together by Wilkin, J., and, the facts recited in the opinion being made to appear by affidavits, the court, on June 3, 1886, made an order allowing the defendant Berryhill to answer upon the following terms and conditions, viz.: (1) that the allegations of new matter in the answer be deemed denied and at issue without a formal reply; (2) that within three days the defendant Berryhill pay the costs of the motion; (3) that the issues in the action be placed on the general term calendar of the court then in session for trial by the court; (4) that Robert A. Smith be appointed receiver of the real property in controversy, with power and authority to raise, by mortgage on said real property, money sufficient to redeem said land from the foreclosure sale under the mortgage of the West St. Paul Building Society, and to pay the taxes thereon; (5) that any money raised in accordance with the order by the receiver, with interest thereon, shall constitute and be a first lien on said land paramount to the claims of either of the parties to the action; (6) that the receiver give bond in the sum of $10,000; (7) that the plaintiffs and the defendant Berryhill, within three days, execute and deliver to the receiver good and sufficient conveyances of said land, which conveyances shall be recorded in the office of the register of deeds, and (8) that the plaintiffs and defendant Berryhill, within three days, execute and file in the office of the clerk of the court their respective consent in writing to the terms of the order. It was further provided in the order that in case defendant Berryhill should fail to comply with the foregoing terms within three days from date, then his application for leave to answer be denied, and the plaintiffs' application for judgment should stand for hearing on June 8, 1886. The defendant Berryhill having failed to comply with the terms of the above order, the plaintiffs' application for judgment was duly heard, and a decree was signed by Wilkin, J., on June 12, 1886, which decree was duly filed and entered by the clerk of the court on June 15, 1886. The defendant Berryhill appeals from the order of April 26, 1886, from the order of June 3, 1886, granting leave to answer upon terms, and from the judgment, the notice of appeal from the judgment having been served on June 14, 1886.

Williams & Goodenow and Berryhill & Davison, for appellant.

Warner, Stevens & Lawrence and Comfort Brothers, for respondents.

VANDERBURGH, J.

This case involves three appeals:

1. An appeal by defendants from an order denying their motion to strike out one or more causes of action set up in the complaint, on the ground that the pleading was double. This objection is not that there is a misjoinder of several causes of action, which constitutes a special ground of demurrer under Gen. St. 1878, c. 66, § 92, but the motion is made under section 107, same chapter, to require the pleading to be corrected by striking out certain portions thereof for irregularity or informality in the statement of the causes of action. Bliss, Code Pl. § 290. The motion was denied by the trial court, and the order is not appealable because it does not involve the merits. Rice v. First Div. St. P. & P. R. Co., 24 Minn. 447.

2. The defendants also appeal from the order denying their application for leave to answer after default. The action was commenced in February, 1885. A demurrer was interposed to the complaint by the defendants; and afterwards, in March, 1886, an amended complaint was filed, from which it appears that the plaintiff, in July, 1882, executed a deed, absolute in form, to the defendant Berryhill of certain...