People's Ice Co. v. Schlenker

• Decision Date: 20 May 1892
• Citation: 50 Minn. 1
• Parties: PEOPLE'S ICE CO. <I>vs.</I> AMELIA SCHLENKER.
• Court: Minnesota Supreme Court

Page 1

50 Minn. 1

PEOPLE'S ICE CO.vs.

AMELIA SCHLENKER.

Supreme Court of Minnesota.

Argued May 18, 1892.

Decided May 20, 1892.

Appeal by plaintiff, People's Ice Company, from an order of the Municipal Court of the City of St. Paul, Twohy, J., made September 30, 1891, vacating a judgment, and allowing defendant to answer.

The summons in this action was served September 2, 1891, upon the defendant, Amelia Schlenker, requiring her to answer in ten days, or judgment would be entered. The action was to recover $124.08 for ice sold and delivered. Immediately after the service of the summons, defendant employed an attorney to defend the action. The attorney neglected to examine the summons, and supposed the action was against her husband, who had no defense. Judgment was entered on default September 22, 1891, for the amount claimed. The attorney discovered his mistake September 26, 1891, and on that day obtained an order that plaintiff show cause why the judgment should not be vacated and defendant allowed to answer. On return day, September 30, 1891, the court ordered the judgment set aside, and allowed the defendant to answer. From this order plaintiff appeals.

O. H. O'Neill, for appellant.

H. V. Rutherford, for respondent.

MITCHELL, J.

1. That an order vacating a judgment is appealable as "an order involving the merits of the action" is no longer an open question in this court. A final judgment determines the rights of the parties to the action, and any order which vacates or modifies it necessarily affects the legal rights of the party in whose favor it is, and hence "involves the merits of the action." Holmes v. Campbell, 13 Minn. 66, (Gil. 58;) Chisago Co. v. St. Paul & Duluth R. Co., 27 Minn. 109, (6 N. W. Rep. 454.)

Our Reports abound in cases where the appealability of such an order has been recognized, and anything to the contrary in Westervelt v. King, 4 Minn. 320, (Gil. 236,) must be considered as long since overruled.

2. While conceding the trial courts a very large discretion in the matter of relieving parties from defaults, and recognizing the rule that this court will not interfere unless there has been a manifest abuse of that discretion, yet we are compelled to the conclusion that there was a clear abuse of discretion in vacating the judgment in this case.

The excuse for defendant's default was exceedingly lame. But the worst defect in the moving papers was an entire absence of any proper affidavit of merits, which is always...