Savings Bank of St. Paul v. Authier
| Decision Date | 27 December 1892 |
| Citation | 53 N.W. 812,52 Minn. 98 |
| Parties | Savings Bank of St. Paul v. Danat Authier et al |
| Court | Minnesota Supreme Court |
Submitted on briefs November 23, 1892
Appeal by plaintiff, the Savings Bank of St. Paul, from an order of the District Court of Ramsey County, Egan, J., made March 29 1892, allowing defendant E. J. Daly to file his answer in the action.
Action against Danat Authier, C. G. Carlson and E. J. Daly defendants, upon a bond given by them to plaintiff to indemnify it against mechanics' liens upon property mortgaged to it. The sheriff of Ramsey county certified and returned that on November 19, 1891, he served the summons upon defendant E. J. Daly personally, at the city of St Paul, by handing to and leaving with him, a true and correct copy thereof. Defendants did not appear or answer, and on December 10, 1891, judgment was entered against them for $ 1,159.60 and costs.
On December 21, 1891, defendant Daly made affidavit that the sheriff's return was false, that the summons was never served on him, that on December 4, 1891, he received through the mail a letter from one John E. Dailey inclosing a copy of the summons and stating it had been served on the writer by mistake, the sheriff supposing him to be one of the defendants. On this affidavit, and the letter, and the affidavit of the writer, he moved the court to set aside the judgment and allow him to answer. On March 29, 1892, the trial court made an order allowing defendant E. J. Daly five days from that date in which to serve and file an answer, on condition that he give a bond to be approved by the court conditioned to pay any judgment the plaintiff might recover against him in the action, and that meantime the judgment should stand as such security. From this order plaintiff appeals.
Order affirmed.
O. H. Comfort, for appellant.
The moving papers show a completed, actual service upon E. J. Daly six days before the entry of the judgment. There is no statement in any of the papers to the effect that Daly ever had any defense, consulted any attorney, or ever proposed to make such defense, if he had any. On December 4, 1891, the mail carrier delivered the summons to Daly under circumstances sufficient to notify him that "service" was intended. Frear v. Heichert, 34 Minn. 96.
Williams & Schoonmaker, for respondent.
The motion papers contained no affidavit of merits. They presented a simple case of a direct attack upon a judgment absolutely void, for want of jurisdiction of the court to render it. The defendant appeared specially before the court, insisting upon a legal right, and not craving a favor. Under such circumstances the court ought either to have denied the motion, or vacated the judgment without terms or conditions. Defendant was legally entitled to the relief demanded, without being required to submit to any terms whatever. Notwithstanding this, Daly complied with the conditions of the order within two days.
The fact that this defendant got the summons in the letter from John E. Dailey did not make a legal service. Goggs v Lord Huntingtower, 12 M. & W. 503; Williams v. Van...
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