Flanery v. Kusha
| Decision Date | 12 November 1920 |
| Docket Number | 21,815 |
| Citation | 179 N.W. 902,147 Minn. 156 |
| Parties | T. B. FLANERY v. ROSA KUSHA, ALSO KNOWN AS MRS. JOHN KUSHA; THERESA SCHINDERLING AND LILLIBELLE DIGEN, APPELLANTS |
| Court | Minnesota Supreme Court |
After the former appeal reported in 143 Minn. 308, 173 N.W. 652 Jelley, J., granted defendant's motion to vacate the default judgment entered against her. From the order granting the motion Theresa Schinderling and Lillibelle Digen appealed. Affirmed.
Relief from default judgment.
1. An application to be relieved from a default judgment must be made within one year after notice thereof. Section 7786, G.S 1913. Upon the conflicting affidavits referred to in the opinion, the court was justified in finding that defendant did not have notice of the judgment more than one year prior to the making of her application to vacate it.
Relief from default judgment -- when hearing of application is after expiration of the year.
2. If the application was made and notice of its hearing given within one year after notice of the judgment, the court has jurisdiction to give relief, even though the hearing is noticed for a date subsequent to the expiration of the year.
Discretion of court not abused.
3. Such an application is addressed to the discretion of the court, which should incline towards giving a defendant an opportunity to establish his defense upon a trial on the merits, and the action of the lower court will not be reversed except for a clear abuse of discretion. There was no such abuse in the present case.
Facts of case sustained the decision.
4. Defendant was foreign born; neither read nor understood English; was inexperienced in business, and was advised by a friend that she need not answer a summons and complaint which were served on her; the property sold under execution on the default judgment entered against her was worth many times the amount of the judgment. These facts justified the court in excusing defendant from the consequences of her default.
Relief for mistake of law.
5. A mistake of law as well as a mistake of fact may afford ground for relief from a judgment.
Purchaser from judgment creditor gets no better title than the latter has.
6. One who purchases from a judgment creditor takes his title subject to defeat by the subsequent vacation of the judgment. He does not stand in the position of a purchaser at a judicial sale, but gets only the title the judgment creditor had.
J. A. Larimore, for appellants.
C. C. Joslyn, for respondent.
This is an appeal from an order granting the defendant's motion to vacate the default judgment entered against her which was before this court in a former appeal, Flanery v. Kusha, 143 Minn. 308, 173 N.W. 652. After the appeal was disposed of, defendant made a second application for the vacation of the judgment. The motion papers were dated July 26, 1919, were served on one of the appellants on July 29, 1919, and on the other on July 30, 1919, and the motion was noticed for hearing on August 23, 1919. The statute under which defendant proceeded reads:
"The court * * * at any time within one year after notice thereof, in its discretion, may relieve a party from any judgment * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect." G.S. 1913, § 7786.
1. The appellants' principal contention is that it conclusively appears that defendant had notice of the judgment more than a year before she served notice of the motion to vacate it. Her first application for the vacation of the judgment was made on the ground that the court acquired no jurisdiction because of the defect in the summons referred to in the opinion on the former appeal, and on the further ground that the judgment had been taken through her mistake and excusable neglect, but the second ground was abandoned and the application submitted and decided solely on the first ground. In her affidavit in support of her first application, she stated that she knew nothing about a judgment having been entered against her until some time during the latter part of the month of July, 1918. In another affidavit made in the same connection she stated that she knew nothing whatever concerning the judgment until a few days prior to July 30, 1918. In her affidavit in support of her second application, she stated that she had no knowledge of the judgment until she saw a letter addressed to her husband, dated and mailed at Minneapolis July 30, 1918, and written and signed by the husband of the appellant, Theresa Schinderling, and that such letter was shown to her about the thirty-first day of July, 1918, or the first day of August, 1918. Schinderling made an affidavit stating that on July 24, 1918, he and one Gibson went to defendant's house in Chicago, and through the medium of an interpreter discussed the judgment with defendant and her husband, and that both were then aware of the entry of the judgment. Gibson made an affidavit corroborating Schinderling. In a reply affidavit, defendant admitted the interview with Schinderling, but denied that either he or any one else informed her that a judgment had been taken against her, and alleged that Schinderling gave her to understand that he desired to purchase the land she owned in Hennepin county. Defendant's husband and one Ganser and his wife, who were present at the interview, made affidavits corroborating defendant.
Schinderling's letter states that the writer wishes to get "this land matter straightened out and the best and easiest way is for you to come up here and we will then go out to the land -- make a deal to sell it," and adds that "if you do not come up in a few days we will ask the court to divide the land so that we can sell our share."
Whether the defendant had notice of the judgment prior to July 31, 1918, in view of the conflicting statements contained in the affidavits, was a question of fact for the determination of the district court. In granting the application, the court necessarily must have found as a fact that she did not have such notice prior to the receipt of Schinderling's letter. It cannot be said that such a finding is palpably contrary to the evidence presented by the affidavits, and hence the order cannot be reversed on this particular ground. 1 Dunnell, Minn. Dig. § 410; Minneapolis Gaslight Co. v. City of Minneapolis, 123 Minn. 231, 143 N.W. 728.
2. Appellants contend that an application to open a default judgment must be heard as well as made within one year after notice of the judgment, otherwise the court is powerless to proceed under section 7786, G.S. 1913. This contention cannot be sustained. In Gerish v. Johnson, 5 Minn. 10 (23), in referring to this statute, the court said:
And in Jorgensen v. Boehmer, 9 Minn. 166 (181):
"The motion appears to have been made within one year after notice of the judgment; the court below, therefore, had jurisdiction."
In Washburn v. Sharpe, 15 Minn. 43 (63), in construing the statute providing that a...
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