Hoff v. Northwestern Elevator Company
| Decision Date | 03 January 1913 |
| Docket Number | 17,927 - (221) |
| Citation | 139 N.W. 153,120 Minn. 224 |
| Parties | GILBERT T. HOFF v. NORTHWESTERN ELEVATOR COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Grant county, Flaherty J., denying its motion to vacate a judgment entered in the action and discharging an order to show cause why the writ of execution should not be quashed and the levy made by the sheriff of that county under the writ be discharged. Affirmed.
Notice of trial -- service by mail.
Service of notice of trial by mail is complete when the notice is properly mailed.
Service by mail.
When a paper served by mail actually comes to the hands of the person to be served within the time required for personal service, the service is good, though the mailing was after the time prescribed by law.
Opening judgment -- no abuse of discretion.
The trial court did not abuse its discretion in refusing to set aside a judgment on account of excusable neglect of defendant's attorneys.
Van Derlip & Lum, for appellant.
E. J Scofield, for respondent.
This is an appeal by defendant from an order of the district court for Grant county denying a motion to set aside a judgment entered by default in favor of plaintiff.
The facts are these:
The action was commenced November 21, 1911, to recover $548 and interest for labor claimed to have been performed by plaintiff for defendant. December 11, 1911, defendant served its answer, a general denial with an additional defense. Plaintiff served a reply to this answer early in January 1912, and the issues were then ready for trial. On May 18 1912, plaintiff's attorney made and filed an affidavit to the effect that on February 14, 1912, he served on defendant's attorneys by mail a notice of trial for the June term of the court. The case was placed upon the calendar for that term, and was reached in its order June 5, 1912. Defendant not appearing, plaintiff waived a jury trial, the case was tried to the court, and a decision filed in favor of plaintiff. Notice of taxation of costs was given for June 12, 1912, and served on defendant's attorneys by mail June 9. On receipt of this notice on June 10 defendant's attorneys wrote to plaintiff's attorney, acknowledging the receipt of the notice, and expressing surprise, "inasmuch as no notice of trial in this action has ever been served upon us." They asked that plaintiff's attorney investigate the facts in regard to the notice of trial, and, if found to be as they stated, suggested a stipulation setting aside the order for judgment. June 13 plaintiff's attorney replied, stating that the case was duly noticed for trial in February, and that he expected to be in Minneapolis to-morrow. June 15 defendant's attorneys wrote to the attorney for plaintiff, reiterating that they had received no notice of trial, and stating that they would be pleased to hear from him further in relation to an arrangement to enable the case to be tried upon its merits, and that, "awaiting further advice from you, will take no steps toward applying to open the judgment." Plaintiff's attorney did not reply to this letter, and on June 24 defendant's attorneys wrote again, asking the status of the case. They received no reply. The judgment had been entered on June 12, and an execution issued, which on August 14 was levied on personal property of defend...
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