Brown v. Gallinger

246 N.W. 473, 188 Minn. 22, 1933 Minn. LEXIS 947

• Court: Supreme Court of Minnesota
• Decided: January 20, 1933
• Docket: No. 29,113.
• Status: Published

Opinion

STONE, Justice.

Plaintiffs had judgment on the pleadings, and defendant appeals. The action is for injunction to prevent trespass upon land in possession of plaintiffs. Plaintiffs’ title depends upon the foreclosure by action of a mortgage admittedly given by defendant and which she insists by answer is still a mortgage notwithstanding its foreclosure. That foreclosure is pleaded at length in the complaint, together with the resulting sale, plaintiffs claiming under conveyance from the purchaser at the sale. Defendant’s failure to redeem is also alleged by the complaint and admitted by the answer, the latter, however, setting up certain facts which, if true, would have been at best matter of defense in the foreclosure action. Judgment was properly ordered for plaintiffs on the pleadings. The judgment in the foreclosure action, from which there was no appeal (the time for appeal has expired), is res judicata. 3 Dunnell, Minn. Dig. (2 ed. & Supp.) § 5163. It is not open to collateral attack (§ 5137, id.) as was attempted by the answer in this case.

Judgment affirmed.

OLSEN, Justice, took no part in-the consideration or decision of this case.