City of St. Paul v. Parker

Supreme Court of Minnesota

City of St. Paul v. Parker

128 N.W.2d 96, 268 Minn. 569, 1964 Minn. LEXIS 743

CourtSupreme Court of Minnesota

DecidedApril 17, 1964

DocketNo. 39,118

StatusPublished

Cited by1 cases

This text of 128 N.W.2d 96 (City of St. Paul v. Parker) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of St. Paul v. Parker, 128 N.W.2d 96, 268 Minn. 569, 1964 Minn. LEXIS 743 (Mich. 1964).

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Opinion

Per Curiam.

Defendant appeals from an order dismissing his appeal to the district court following his conviction in the municipal court of St. Paul upon a charge of disorderly conduct. The order was entered on April 11, 1963, and a motion by defendant to vacate that order was heard and denied on April 15, 1963.

The order of dismissal was based upon defendant’s failure to prosecute his appeal. A review of the record before us persuasively indicates that there was no abuse of discretion in denying defendant’s motion to reinstate. The facts, as revealed by an affidavit of the assignment clerk, unequivocally establish that the trial was set for a day certain; that defendant received ample prior notice thereof; and that he made no effort to request a resetting or to secure a continuance. His contrary assertions are refuted by the affidavit and we are of the opinion that the court was justified in finding his explanation for nonappearance insufficient to require a reinstatement of the appeal.

Although the court, following dismissal, could have proceeded in accordance with Minn. St. 633.24, the procedure there authorized is permissive. Since the court did not choose to order defendant’s arrest and award sentence against him, it was proper to remand the cause to the municipal court for execution of the sentence previously imposed. See, State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N. W. (2d) 126, 6 A. L. R. (2d) 988.

Affirmed.

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Per Curiam.

Defendant appeals from an order dismissing his appeal to the district court following his conviction in the municipal court of St. Paul upon a charge of disorderly conduct. The order was entered on April 11, 1963, and a motion by defendant to vacate that order was heard and denied on April 15, 1963.

The order of dismissal was based upon defendant’s failure to prosecute his appeal. A review of the record before us persuasively indicates that there was no abuse of discretion in denying defendant’s motion to reinstate. The facts, as revealed by an affidavit of the assignment clerk, unequivocally establish that the trial was set for a day certain; that defendant received ample prior notice thereof; and that he made no effort to request a resetting or to secure a continuance. His contrary assertions are refuted by the affidavit and we are of the opinion that the court was justified in finding his explanation for nonappearance insufficient to require a reinstatement of the appeal.

Although the court, following dismissal, could have proceeded in accordance with Minn. St. 633.24, the procedure there authorized is permissive. Since the court did not choose to order defendant’s arrest and award sentence against him, it was proper to remand the cause to the municipal court for execution of the sentence previously imposed. See, State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N. W. (2d) 126, 6 A. L. R. (2d) 988.

Affirmed.

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Bluebook (online)

128 N.W.2d 96, 268 Minn. 569, 1964 Minn. LEXIS 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-st-paul-v-parker-minn-1964.

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