Glaeser v. City of St. Paul

• Decision Date: 02 February 1897
• Docket Number: 10,273--(258)
• Citation: 69 N.W. 1101,67 Minn. 368
• Parties: THEODORE GLAESER v. CITY OF ST. PAUL
• Court: Minnesota Supreme Court

69 N.W. 1101

67 Minn. 368

THEODORE GLAESER v. CITY OF ST. PAUL

Nos. 10,273--(258)

Supreme Court of Minnesota

February 2, 1897

Appeal by plaintiff from an order of the district court for Ramsey county, Willis, J., vacating a judgment in favor of plaintiff for $ 765.87, and allowing defendant to answer. Affirmed.

Order affirmed.

S. C Olmstead, for appellant.

E. J Darragh, for respondent.

OPINION

MITCHELL, J.

The summons and complaint were served upon the mayor of the city on July 17, 1896. In default of any appearance on part of defendant, the plaintiff, on August 13, obtained an order appointing a referee to assess his damages, and on the same day judgment was entered against the city on the referee's report. On August 15 the corporation counsel applied for and obtained an order on plaintiff to show cause on Monday, August 17, at 10 a. m., why the judgment should not be vacated, and the defendant allowed to answer on the merits. This order was served on plaintiff's attorney about noon of Saturday, August 15. The affidavits upon which the order to show cause was granted were accompanied by the proposed answer of the defendant, verified by the assistant city attorney. When the order to show cause came on for hearing, plaintiff's attorney applied for a continuance of the hearing for ten days, on the ground that, because of prior professional engagements, he could not sooner prepare for argument. The court refused to grant the continuance, proceeded with the hearing, and granted defendant's motion.

1. The first error assigned is the refusal of the court to grant plaintiff's counsel a postponement of the hearing. The time between the service of the order and the return day was so short that ordinarily a court would grant counsel additional time for preparation. But it does not appear that any considerable time for preparation was necessary. It was not suggested that it was desired to prepare any counter affidavits. All the preparation that was needed was to examine the affidavits and proposed answer upon which the order to show cause was granted, so as to ascertain whether they made a case entitling the defendant to the relief asked for on the ground of mistake, inadvertence, or excusable neglect. These papers were quite brief, and the subject is one with which the profession is quite familiar, and it would seem that the time which counsel devoted to preparing an affidavit for a postponement...