Burghardt v. Knights of Maccabees of the World

133 N.W. 612, 116 Minn. 244, 1911 Minn. LEXIS 976

• Court: Supreme Court of Minnesota
• Decided: December 15, 1911
• Docket: Nos. 17,290—(161)
• Status: Published

Opinion

Per Curiam.

Appeal from an order of the district court of the county of Ramsey denying the defendant’s motion to vacate a judgment against it and for leave to answer. The summons and complaint were duly served, but the defendant failed to answer, and judgment was entered against it by default. The basis of its motion for relief was that its default was the result of surprise, mistake, and excusable neglect on its part.

It appears from the record that the plaintiff attempted to bring a former action against the defendant, which was dismissed, and this action was commenced. The moving affidavits tend to show that the title of each action and the summons and complaint were the same, except in the first one the summons required the defendant to answer in twenty days, and the second one required an answer in thirty days; that a copy of the summons and complaint in the second action duly came to the hands of the proper officer of the defendant, and it was assumed that they weré the summons and complaint in the first ease, and no action was taken with reference to them until notice was received of the entry of judgment in this action, when the motion for relief was promptly made.

The affidavits and the correspondence of the respective parties, relevant to the omission of the defendant to take any action as to the second summons and complaint, do not justify the conclusion that the trial court abused its discretion in denying the defendant’s motion. White v. Gurney, 92 Minn. 271, 99 N. W. 889.

Order affirmed.