State ex rel. Weide v. District Court Second Judicial Dist
| Decision Date | 30 December 1893 |
| Docket Number | 8601 |
| Citation | 57 N.W. 319,56 Minn. 56 |
| Parties | State of Minnesota ex rel. Nellie M. Weide v. District Court Second Judicial Dist |
| Court | Minnesota Supreme Court |
Argued December 19, 1893.
Application for reargument denied January 10, 1894.
Certiorari issued on the relation of Nellie M. Weide to the District Court of Ramsey County, Charles E. Otis, J., to certify and return to this Court the record and proceedings in the matter of assessment of benefits from opening a street.
In the year 1886 the City of St. Paul laid out a street two hundred feet wide on the left bank of the Mississippi river from Chestnut Street to the outlet of Fountain Cave. The Board of Public Works made an assessment of benefits upon adjacent property, to pay the cost and expense of the condemnation of the land taken. The relator's fifty lots in Kinney, Bond and Trader's Addition were assessed $ 2,089. She did not pay and application was made to the District Court of Ramsey County December 11, 1886, for judgment against the property. She appeared and filed objections and the hearing was adjourned. Several subsequent adjournments were entered and on July 11, 1890, the Court overruled the objections and ordered judgment against the several lots and it was entered the same day. The relator moved the Court October 14, 1893 on notice, to vacate this judgment on the ground that it was entered through mistake and fraud and without an order of the Court, and on the ground that if ordered, it was done without notice to the relator, and on the further ground that the assessment was made by mistake, the Board having defined the assessment district without notice or hearing. This motion was supported by affidavits and by the oral evidence of H. W Phillips of the city legal department and who had charge of assessments. The Court denied the application. In the return to the certiorari were the record and a case made, settled signed and filed showing the affidavits read and evidence given on the motion.
Order affirmed.
Humphrey Barton, for relator.
The assessment upon which this judgment was entered was not only irregular, but void. The notice upon which the assessment was made was invalid because it defined the assessment district previous to hearing. This notice was jurisdictional. Overmann v. City of St. Paul, 39 Minn. 120; Sewell v. City of St. Paul, 20 Minn. 511; State ex rel. v. Otis, 53 Minn. 318.
A number of lots were assessed together in bulk. This was without authority and rendered the assessment void. Brennan v. City of St. Paul, 44 Minn. 464.
Upon the application for judgment objections were interposed December 11, 1886, and the matter was continued from time to time for about six months when it was dropped from the calendar and nothing more done until June, 1890, when it was, without notice to the relator placed on the special term calendar and referred to Judge Kelly, and thereupon he overruled the objections and ordered judgment without a hearing.
To make laches a bar to relief there must be a delay with knowledge to the prejudice of the opposing party. The relator had no knowledge of the judgment until within a few days of the time of making the application to vacate it. She cannot be guilty of laches, as delay without knowledge will not constitute laches. Coles v. Ballard, 78 Va. 139; Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221; Stocking v. Hanson, 35 Minn. 207; Bausman v. Kelley, 38 Minn. 197; Bowman v. Patrick, 36 F. 138.
The city has not shown itself in any way prejudiced by the delay, and without prejudice to it there can be no laches. Nell v. Dayton, 47 Minn. 257; Heffner v. Gunz, 29 Minn. 108; Magin v. Lamb, 43 Minn. 80.
Leon T. Chamberlain and Hermon W. Phillips, for respondent.
The lots were liable to assessment as property which might be deemed benefitted by the improvement. Sp. Laws 1874, ch. 1, subch. 7, §§ 3, 14, 23, 26. And if there was a mistake as to the fact in the proceedings preliminary to the judgment, the judgment was nevertheless valid. Dousman v. City of St. Paul, 23 Minn. 294. The assessments were merged in the judgment, and whether they were properly or erroneously made is not now to be considered. Langevin v. City of St. Paul, 49 Minn. 189.
The order of Judge Kelly upon which judgment was entered was for some time misplaced in the vault of the clerk's office, so when this motion was made it was charged in the moving papers that no order for judgment had ever been made, but before the cause came on for hearing the order was found. It will be apparent that this was the principal ground relied upon, by reference to Sp. Laws 1889, ch. 32, § 70, p. 590; Wieland v. Shillock, 24 Minn. 345; Drew v. City of St. Paul, 44 Minn. 501.
The application to open and set aside the judgment is addressed to the discretion of the District Court, and an unreasonable delay in making the motion is sufficient reason for denying the application. Groh v. Bassett, 7 Minn. 325; Jorgenson v. Griffin, 14 Minn. 464; Hotchkiss v. Cutting, 14 Minn. 537; Altmann v. Gabriel, 28 Minn. 132; Frankoviz v. Smith, 35 Minn. 278; Holmes v. Campbell, 13 Minn. 66.
Several objections to the assessment and judgment in question are raised in this court which were evidently not raised or considered in the District Court. The motion there made was to vacate and set aside the judgment entered ...
To continue reading
Request your trial