Kipp v. Clinger
| Decision Date | 19 January 1906 |
| Docket Number | 14,495 - (153) |
| Citation | 106 N.W. 108,97 Minn. 135 |
| Parties | SYLVESTER KIPP v. HENRY CLINGER and Others |
| Court | Minnesota Supreme Court |
Appeal by Lillian Lambert, grantee of the heirs of defendant Oliver Patch, deceased, from an order of the district court for Pine county, Crosby, J., denying her motion to open a default judgment entered against said decedent and his heirs designated as unknown parties, and for leave to answer. Affirmed.
Case Followed.
Johnson v. Johnson, 92 Minn. 167, 99 N.W. 803, to the effect that a memorandum of a trial court attached to, but not expressly made a part of, its order or decision, may be referred to when it furnishes a "controlling reason for the court's decision," followed and applied.
Memorandum of Trial Court.
Such memorandum may not, however, be referred to for the purpose of impeaching or contradicting express findings of fact, or conclusions necessarily following from the decision made.
Motion to Vacate Judgment.
The grantee of a defendant in an action to determine adverse claims to real property, wherein judgment has been rendered by default, may move the court to vacate and set aside the judgment and for leave to defend therein; but his right to that relief depends upon whether the defendant, to whose rights he succeeded, would, on the facts disclosed, be entitled to it.
Exercise of Due Diligence.
It must affirmatively appear, to justify granting such a motion, when addressed to the discretion of the court, under G.S. 1894 § 5267, that it was made with due diligence and within one year from actual notice of the judgment.
Affidavit of Absence of Notice.
An affidavit by such grantee stating in general terms that the defendant, his grantor, had no actual notice or knowledge of the judgment, is hearsay evidence, and insufficient to establish the fact of want of notice in defendant.
Rule of Hearsay Evidence.
The rule excluding hearsay evidence applies to affidavits used upon motions to vacate and set aside judgments.
Appeal -- Right Decision but Wrong Reason.
The rule that an order or decision of the court below, otherwise right as a matter of law, will not be reversed merely because the reasons assigned therefor by the court were wrong applied.
Robert C. Saunders, for appellant.
Sylvester Kipp, pro se.
This action was commenced in April, 1902, against numerous defendants, among them one Oliver Patch, and also all "unknown parties" claiming any interest in the land involved in the action, to quiet title to a number of tracts of land in Pine county, which was alleged in the complaint to be vacant and unoccupied. The summons was served by publication, and in due time, and on July 8, 1902, default judgment was rendered in favor of the plaintiff for the relief prayed for. At the time of the commencement of the action and rendition of the judgment defendant Oliver Patch was dead; but his heirs, residing outside the state of Minnesota, were bound by the judgment as unknown parties. Thereafter, and prior to May 30, 1905, his heirs conveyed one of the tracts of land involved in the action, which was owned by their ancestor, Oliver Patch, to Lillian Lambert, who thereafter, and on July 25, 1905, as the successor in interest of said heirs, moved the court to vacate the judgment, in so far as it affected the particular land, and for leave to defend in the action. The motion was denied by the trial court on the ground that the application was not seasonably made. It appears that the judgment rendered in the action was duly recorded in the office of the register of deeds for Pine county, wherein the land is located, on July 12, 1902, under the provisions of chapter 76, p. 82, Laws 1897, and the court held that the record of the judgment constituted actual notice of its entry to all the defendants in the action, and that, inasmuch as the motion for leave to answer was not made within one year from the date of such record, the court had no discretion to grant it. Lillian Lambert appealed.
The trial court appended a memorandum to the original order denying the motion, in which the reasons for the order were given. On the theory that the memorandum, not having been made a part of the order, could not be referred to for the purpose of ascertaining the reasons for the action of the trial court, a supplemental order was subsequently obtained in which the reasons controlling the court were stated, and from which it appears that in denying the motion the court did not consider the merits of the application, but denied it solely on the ground that as a matter of law the motion was made too late. Counsel for respondent object to the consideration of this supplemental order on the ground that it was unauthorized.
There are numerous decisions of this court to the effect that the memorandum attached to a decision of the trial judge, which is not expressly made a part thereof, cannot be considered in this court for any purpose; but that rule has been materially departed from in recent decisions, and is not enforced at the present time with its former strictness. The memorandum may now be considered, even though not expressly made a part of the order, for the purpose of throwing light upon or explaining the decision. Johnson v. Johnson, 92 Minn. 167, 99 N.W. 803. It may not, however, be referred to for the purpose of impeaching, contradicting, or overcoming express findings of fact or conclusions necessarily following from the decision made (Holland v. Great Northern Ry. Co., 93 Minn. 373, 101 N.W. 608), but may, under the decision in the Johnson case, supra, be referred to for purposes of illumination, or as expressed by Judge Lovely, in that case, where it furnishes a "controlling reason for the court's decision." It is therefore unnecessary to consider the right of the trial court to make the supplemental order or its effect.
Chapter 76, p. 82, Laws 1897, provides that a certified copy of any order or decree or judgment of any court of record of the state of Minnesota affecting the title to real estate, or any interest therein, may be recorded in the office of the register of deeds, in any county wherein such real estate or any part thereof is situated, and that when so recorded the judgment "shall be deemed notice of the contents thereof to all parties interested," and shall be received in evidence with like effect as the original. Prior to the passage of this statute this court had uniformly held that an application under section 5267, G.S. 1894, to vacate a default judgment and for leave to answer could be made at any time within one year after actual notice of its entry. Wieland v. Shillock, 23 Minn. 227. If the relief asked for be based on section 5206, the motion must be made within a year from the entry of the judgment, and...
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