Myrick v. Edmundson

• Decision Date: 01 January 1858
• Citation: 2 Minn. 259
• Parties: NATHAN MYRICK vs. E. EDMUNDSON & Co.
• Court: Minnesota Supreme Court

Page 259

2 Minn. 259

NATHAN MYRICKvs.

E. EDMUNDSON & Co.

Supreme Court of Minnesota.

This action was brought by Myrick to vacate a judgment against him, and all the proceedings thereunder. The character of the cause of action stated, is fully set forth in the opinion. A temporary injunction was issued, which, on defendants' motion, was dissolved, and the order dissolving it came to this court for review.

Points and authorities for appellant: —

1. The second, third and fourth grounds of motion go to the form of the writ, and are amendable; but it is a sufficient answer, that the defendant answered and moved to dissolve an answer, which was a waiver and cure. 1 Barb. Ch. Pr. 626; Parker v. Williams, 4 Paige, 439.

2. The complaint is not contradictory in the respects charged, amounting substantially to this: that the motion to open the default was argued upon the mistaken assumption that the sheriff had made a false return, and decided upon the express ground that the only redress was upon the officer; whereas it was discovered first about November 5, 1857, that the officer's return was correct, thus discharging the officer from any liability, and dissipating the groundwork of the decision.

3. The court below erred in dissolving the injunction, because the answer does not deny positively all the equities of the bill. There is but one positive denial, and that is evasive. 1 Barb. Ch. Pr. 640-3.

4. There are preponderating circumstances in favor of the issue which is made upon positive assertion, to-wit: the obvious fact that the motion below could not have been denied, except upon the theory which the complaint charges it was argued upon.

5. It appears that the merits were not fully heard below. A court of equity always interposes to relieve from accidents or mistakes, and the appellant's rights will not be foreclosed summarily upon motion.

Points for the respondents: —

1. The court below properly dissolved the injunction issued in this cause; because, no facts are set forth in the complaint authorizing the same.

2. Because that part and portion of the complaint commencing at folio — and ending at folio — is directly contradicted by the complaint and the exhibits therewith filed.

3. Because that part and portion of the complaint commencing at folio — and ending at folio — is directly contradicted by said complaint and exhibits.

4. Because it appears from the said complaint that the plaintiff in this cause has availed himself of any rights which he had under Rev. Stat. 335, § 52.

5. Because the said plaintiff, in his said complaint, has shown himself guilty of such gross negligence and laches as not to entitle him to the equitable interposition or relief prayed for.

6. Because the said complaint is contradictory in itself.

7. The said writ was not issued in the name of the United States.

8. The said writ was not tested in the name of the (then) judge of the district court out of which the same was issued.

9. Because the said writ is not returnable on a day certain, or at any specified time.

Brisbin & Bigelow, for appellant.

Van Etten & Officer, for respondents.

EMMETT, C. J.

It appears that in March, 1856, the defendants commenced an action in the district court of the 2d district, Ramsey county, against Nathan Myrick and some twenty-two others. The summons was served on Myrick on the 2d day of April, 1865, by leaving a copy at his last usual place of abode, he being absent from the territory at the time. Judgment was rendered against him on the 7th of August, 1856, upon failure to answer, for the sum of $663.89, and execution issued thereon, which was levied on his property, and the property sold to satisfy the same on the 8th day of November, 1856, for the sum of $712.00. In October previous to the sale, Myrick moved, on his own affidavit, to set aside the default in said action, and for leave to answer, on the ground that he had not been personally served with process, and had had no notice of the pendency of the action, until after the judgment had been rendered, and his property levied upon, averring also that he had a valid defense. This motion was heard by the judge on the 5th day of November, 1856, just previous to the sale, and was denied. Myrick delayed further action until the 6th of November, 1857, just before the time for redeeming the property sold on execution would have expired. He then came forward and paid the amount of the judgment, interest, and costs, into the hands of an agent, with instructions to pay the same to the sheriff for the redemption of the property sold, and on the same day commenced the present action, asking for an injunction to restrain the sheriff from paying over the money, or making a conveyance to the purchaser and to restrain the defendants, (whom we infer to...