Exley v. Berryhill

• Decision Date: 01 December 1886
• Citation: 30 N.W. 436,36 Minn. 117
• Parties: EXLEY AND ANOTHER v BERRYHILL AND ANOTHER.
• Court: Minnesota Supreme Court

36 Minn. 117

30 N.W. 436

EXLEY AND ANOTHERvBERRYHILL AND ANOTHER.

Supreme Court of Minnesota.

December 1, 1886.

(Syllabus by the Court.)

An order refusing to strike out certain portions of a pleading for duplicity under Gen. St. Minn. 1878, c. 66, § 107, does not involve the merits, and is not appealable.

The time to appeal from a judgment under Gen. St. Minn. c. 86, does not commence to run until the entry thereof; and an appeal taken before the filing of the record or entry of the judgment is premature.

An application for leave to answer after default is addressed to the discretion of the court, and the order granting such relief may be made conditional.

Upon the facts of this case as detailed in the opinion, held that an order granting leave to answer upon the condition that the defendants consent to the appointment of a receiver of the property in controversy, pending the trial and determination of the issues raised by the answer, was not an abuse of discretion.

Appeal from an order of the district court, Ramsey county.

Warner, Stevens & Lawrence and O. H. Comfort, for respondents, Exley and another.

Berryhill & Davison and Williams & Goodenow, for appellant Berryhill.

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. 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. Railroad Co., 24 Minn. 448.

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 real estate which it was understood was to stand as security for a loan, and thereafter also executed certain mortgages to him covering the same real estate, and a large amount of personal property, to secure the same loan, including money previously advanced by the defendant Berryhill, amounting in all, as plaintiff alleges, to a sum not exceeding $3,100. It is alleged that plaintiff realized $600 from lots sold by him under the first deed, and that prior to November, 1883, plaintiff had paid, on account of his indebtedness to the defendants, the sum of $650, and that in December, 1884, the defendant Berryhill caused to be sold personal property, included in the chattel mortgage held by him, worth $3,500, for which he has failed to render any account, except that the net proceeds thereof was $1,175. It is also shown by the supplemental complaint filed in this action that Berryhill caused the real-estate mortgage to be foreclosed by a sale of the mortgaged premises on the fourteenth day of February, 1885, for the sum of $2,441.50, and that he claims an absolute title thereto, under such sale, the time of redemption having expired, subject, however, to a prior mortgage held by the West St. Paul Building Society, which was foreclosed by a sale of the same premises on the fifteenth day of June, 1885, at the price of $2,889.82, and that the plaintiffs were destitute of other property upon which to raise money to redeem from the last-mentioned sale. It is further alleged that the mortgages in question were usurious and void. The plaintiff demands an accounting and other appropriate relief. The defendants made the motion to strike out portions of...