McClure v. Clark

• Decision Date: 23 December 1904
• Citation: 101 N.W. 951,94 Minn. 37
• Parties: McCLURE v. CLARK et al.
• Court: Minnesota Supreme Court

94 Minn. 37

101 N.W. 951

McCLURE

v.CLARK et al.

Supreme Court of Minnesota.

Dec. 23, 1904.

Appeal from District Court, Stearns County; L. L. Baxter, Judge.

Action by Thomas S. McClure against Nehemiah P. Clark and others. From an order relieving the defendant Caroline E. Clark from default, plaintiff appeals. Reversed.

Syllabus by the Court

1. Upon the undisputed facts stated in the opinion, held, the trial court erred in relieving respondent from default and permitting her to answer. Taylor & Jenks and Geo. H. Reynolds, for appellant.

Stewart & Brower, for respondents.

DOUGLAS, J.

Appeal by plaintiff from an order of the district court of Stearns county relieving the defendant Caroline E. Clark from default therein and allowing her to answer. This was an action to quiet title, and summons was served upon said defendant personally January 30, 1902. An order for judgment was duly made against her on December 31st following, but the entry thereof was deferred until April, 1904. From the affidavit of defendant it appears that shortly after its service she handed the summons to her husband and general agent, Nehemiah P. Clark, who was also a defendant. An attorney was not employed by either of them prior to March, 1904, over two years subsequent to such service, at which time the pending application for leave to answer was made, and no excuse or explanation whatever was given for such long delay or neglect except that defendant assumed her husband, to whom the summons had been transferred, would attend to the matter. While the trial court has a wide discretion in relieving from defaults in proper cases, still it has always been held to be a judicial discretion, not to be exercised capriciously or arbitrarily. The following cases illustrate in many phases the rule adopted: Altmann v. Gabriel, 28 Minn. 132, 9 N. W. 633;People's Ice Co. v. Schlenker, 50 Minn. 1, 52 N. W. 219;Osman v. Wisted, 78 Minn. 295, 80 N. W. 1127;McMurran v. Bourne, 81 Minn. 515, 84 N. W. 338;Crane & Ordway Co. v. Sauntry, 90 Minn. 301, 96 N. W. 794;White v. Gurney et al. (Minn.) 99 N. W. 889. In the application at bar it was not suggested that neglect to answer was based upon fraud, inadvertence, or mistake; therefore a foundation was not laid for the exercise by the trial court of any discretion. The court was simply called upon to set aside a default which had existed over two years, upon the naked request of defendant, because it met the pleasure of herself and...