Wheaton Flour Mills Company v. Welch
| Decision Date | 11 July 1913 |
| Docket Number | 18,133 - (235) |
| Citation | 142 N.W. 714,122 Minn. 396 |
| Parties | WHEATON FLOUR MILLS COMPANY v. M. L. WELCH |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Traverse county denying defendant's motion to vacate a judgment and grant him leave to defend the action on the merits. Reversed.
Vacating judgment -- service of summons outside Minnesota.
1. A defendant, to whom a copy of the summons is delivered in person without this state, is not personally served with summons within the meaning of section 4113, R.L. 1905. Such service is only the equivalent or substitute for a service of summons by publication.
Vacating judgment -- error not to grant leave to defend.
2. The defendant to whom the summons in this action was so delivered in person in the state of New York was not guilty of inexcusable neglect in failing to answer in time, and the court erred in refusing to grant him leave to come in and defend.
Wilson Mercer, Swan & Stinchfield, for appellant.
F. W Murphy, for respondent.
The defendant appeals from an order denying his application to open a default and permit him to defend.
The action is to cancel a mortgage of $3,500 held by defendant upon plaintiff's land in Traverse county, this state. On August 3, 1912, defendant was a resident of the city of New York. On that day, the complaint and the affidavit prescribed for service of the summons by publication were filed. The latter shows that at the same time a copy of the summons was mailed to defendant. No other papers in the action appear to have been filed until September 20, 1912. Defendant expected the suit, and in the latter part of July wrote the attorney for plaintiff requesting him to defend. He also inclosed a retainer. This was promptly returned to defendant in a letter mailed July 30, with the information that the suit was brought and that the papers would soon be served upon him, but if he desired to avoid the expense of service thereof, he could have an attorney appear for him. He was also given the names of four practicing attorneys in Traverse county. A copy of the summons was delivered to defendant personally on August 15 in New York. The defendant's affidavit states that on August 7, he wrote Mr. Lightner, an attorney at St. Paul, requesting him to conduct his defense, that early in September he was informed by Mr. Lightner that, if service of summons was by publication, he would have until October 1 to answer. But inasmuch as Mr. Lightner did not wish to go to Wheaton to conduct the trial, the defendant concluded to request his present attorneys to protect his interests. He first wrote them September 21, 1912. He also states that prior to September 26 he was unaware that judgment herein had been entered against him. On October 2, 1912, he telegraphed his attorneys to proceed with the proper defense. Unfortunately for defendant, his attorneys adopted the plan to get him out of court, instead of asking for the opportunity to come in and defend. But when the court on November 20, 1912, denied his application to set aside the judgment for lack of jurisdiction to enter the same upon such service of summons as was made, the defendant on December 11, 1912, served notice of this motion to open the default and for leave to defend. The motion was made under sections 4113 and 4160, R.L. 1905.
The defendant was one upon whom the summons was not personally served, and therefore, unless guilty of laches, had had the right to come in and defend. The delivery to a defendant outside the state of a summons is not personal service thereof within the meaning of section 4113 of the code. It is merely the equivalent or substitute for a completed statutory service of summons by publication. H.L Spencer Co. v. Koell, 91 Minn. 226, 97 N.W. 974. But a defendant served by publication, or by a personal delivery of the summons without the state, has an absolute right to come in and defend within a year after the entry of judgment, unless laches bars his right. From the time he has knowledge of the commencement of the suit, he must proceed with diligence to make his defense. Lord v. Hawkins, 39 Minn. 73, 38 N.W. 689; Cutler v. Button, 51 Minn. 550, 53 N.W. 872; Bogart v. Kiene, 85 Minn. 261, 88 N.W. 748, and in DeLaittre v. Chase, 112 Minn. 508, 128 N.W. 670, the right of the defendant not personally served to come in and defend under said...
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