LaPlante v. Knutson
| Decision Date | 27 April 1928 |
| Docket Number | 26,606 |
| Parties | W. E. LaPLANTE v. MARTIN KNUTSON AND ANOTHER |
| Court | Minnesota Supreme Court |
Plaintiff as the receiver of the First National Bank of Argyle appealed from an order of the district court for Marshall county, Grindeland, J. granting the motion of the defendant Helga Knutson to vacate a judgment entered against her and for leave to answer. Affirmed.
In its discretion district court may allow renewal of motion to vacate a judgment and relieve from default.
The strict rule of res adjudicata does not apply to motions in a pending action. The district court has jurisdiction and may in its discretion allow the renewal of a motion to vacate a judgment and relieve from default. The irregularity of failing to procure leave to make it is cured by the overruling of an objection to the hearing of the second motion.
Judgments 34 C.J. p. 387 n. 27; p. 388 n. 29.
A. N. Eckstrom, for appellant.
Julius J. Olson and Oscar R. Knutson, for respondent, Helga Knutson.
In this action for the recovery of money there was a default by both defendants. It was due, the record indicates, to the oversight of their then attorney. He moved for a vacation of the judgment entered on the default and for leave to answer. By an order of October 1, 1927, that motion was granted as to defendant Martin Knutson but denied as to defendant Helga Knutson. The denial as to her was upon the ground that the affidavit of merits was not made by her or anyone else having personal knowledge of the facts, and because the showing of a meritorious defense was lacking. See People's Ice Co. v. Schlenker, 50 Minn. 1, 52 N.W. 219. By a motion returnable October 22, 1927, well within the time for an appeal from the first order, defendant Helga Knutson, by her present counsel, renewed her motion to vacate the default judgment, for leave to answer and "such other and further relief as may be just." The second motion was made upon the same facts as the first, but was supported by a showing materially more competent for the purpose intended than that in support of the first motion. From the order granting the second motion, plaintiff appeals.
The argument in support of the appeal is that the court was without jurisdiction to entertain the second motion and is put, in the main, upon Stacy v. Stephen, 78 Minn 480, 481, 81 N.W. 391, where it was said that That exception show that the question is not one of jurisdiction but rather and only one of propriety, for with leave of court a motion may be renewed. And while the better practice is to apply for and procure formal leave for the renewal of a motion, that is not necessary. Here the second motion was met by a so-called special appearance. It was an objection to hearing the second motion because the former had been heard and decided, which was in fact though not expressly overruled. That was equivalent to the granting of leave for the presentation of the second motion. O'Hara v. H.L. Collins Co. 84 Minn. 435, 87 N.W. 1023. See also McLaughlin v. City of Breckenridge, 122 Minn. 154, 141 N.W. 1134, 142 N.W. 134. "The strict rule of res adjudicata does not apply to motions in a pending action, and a trial court has jurisdiction to and may in its discretion allow a renewal of such motions." 19 R.C.L. 676; Fisk v. Hicks, 29 S.D. 3998 137 N.W. 424, Ann. Cas. 1914D, 971. The statement in Griffin v....
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