White v. Gurney

• Decision Date: 27 May 1904
• Docket Number: 13,953 - (82)
• Citation: 99 N.W. 889,92 Minn. 271
• Parties: FRANK T. WHITE v. ADELINE GURNEY and Another
• Court: Minnesota Supreme Court

99 N.W. 889

92 Minn. 271

FRANK T. WHITE v. ADELINE GURNEY and Another

Nos. 13,953 - (82)

Supreme Court of Minnesota

May 27, 1904

Appeal by defendant Adeline Gurney from an order of the district court for Sherburne county, Giddings, J., denying a motion to vacate a judgment in favor of plaintiff entered upon default of defendants and for leave to answer. Affirmed.

SYLLABUS

Opening Default Judgment.

Application to open a judgment entered by default and permit defendant to answer, based upon her excusable neglect, is addressed to the discretion of the trial court.

Title of Mortgagee Under Decree.

The mortgagee takes land which is vested in the mortgagor by a judicial decree subject to the right of the defendant to vacate the same within the statutory limit, and is not protected by the registry acts as an innocent purchaser.

O. M Metcalf, for appellant.

James C. Tarbox and Edson S. Gaylord, for respondents.

OPINION

DOUGLAS, J.

Application by defendants to vacate judgment entered on November 17 1902, and for permission to answer. From the order of the court overruling the same, defendant Adeline Gurney appeals.

It appears that on April 14, 1902, H. E. White and the plaintiff, Frank T. White, commenced separate actions against the defendants to determine adverse claims to land situated in Sherburne county. The respective complaints were upon similar paper, and signed by the same attorney. Service upon the defendants was personal, and they delivered the papers to their attorney with the request that he answer and represent them in the litigation. He accepted such employment, and filed an answer in the action brought by H. E. White, but neglected to do so in this proceeding for the reason that, owing to the similarity of names and paper, he negligently assumed that but one action had been brought. Six months thereafter, the cause was placed upon the November calendar of the district court of Sherburne county, the default of the defendants entered, and issue tried. About two months after the entry of judgment plaintiff borrowed the sum of $700 of the Citizens' State Bank of Monticello, and executed a mortgage upon the premises involved to secure the same. It also appears from affidavits filed in support of the motion that the defendant Adeline Gurney was the owner of the land in question, subject to a large number of tax titles claimed to be owned by the plaintiff, the validity of which is not in question. This motion was based upon section 5267, G.S. 1894, which is in part as follows:

The court may likewise, in its discretion, allow an answer or reply to be made, or other act to be done, after the time limited by this chapter, or by an order enlarge such time; and may also, in its discretion, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him, through his mistake, inadvertence, suspense, or excusable neglect.

Under a uniform line of authorities such an application is addressed to the discretion of the trial court, and its action will not be disturbed except for palpable abuse. Merritt v. Putnam, 7 minn. 399 (493); Granse v. Frings, 46 Minn. 352, 49 N.W. 60; Fitzpatrick v. Campbell, 58 Minn. 20, 59 N.W. 629; Glaeser v. City of St. Paul, 67 Minn. 368, 69 N.W. 1101; Milwaukee H. Co. v. Schroeder, 72 Minn. 393, 75 N.W. 606; Potter v. Holmes, 74 Minn. 508, 77 N.W. 416; Hull v. Chapel, 77 Minn. 159, 79 N.W. 669; McMurran v. Bourne, 81 Minn. 515, 84 N.W. 338.

Negligence of an attorney often forms an excellent basis for relief (Hildebrandt v. Robbecke, 20 Minn. 83 [100]; Bray v. Church of St. Brandon, 39...