Gross v. Board of Supervisors

163 N.W. 126, 137 Minn. 152, 1917 Minn. LEXIS 686

• Court: Supreme Court of Minnesota
• Decided: June 8, 1917
• Docket: Nos. 20,289 — (99)
• Status: Published

Opinion

Bunn, J.

Plaintiff on September 15, 1915, served notice of an appeal to the' district court, Bine Earth county, from the determination of defendant board, made August 18, 1915, to lay a certain road. A bond on appeal was exeuted and approved September 16. Both notice and bond bear the indorsement: “Piled September 21, 1915,” under the signature of the clerk of the district court. On the call of the calendar, defendant moved to dismiss the appeal, on the ground that the notice and bond were not filed in time. The entire controversy was as to the time the notice of appeal and bond were filed, whether within 30 days from the decision of the board. Plaintiff claimed that the papers were in fact filed with the clerk on September 17. The court, by its acting judge, after a hearing granted the motion to dismiss. This order was made November 19, 1915. Thereafter and in October, 1916, plaintiff moved the court for an order correcting the files in the action so as to show the date of filing of the appeal bond as September 17, 1915, and setting aside the order of November, 1915, granting defendant’s motion to dismiss. The court, after a hearing upon new affidavits, made the order asked for, holding that the bond was in fact filed September 17, 1915, correcting the records accordingly and vacating the prior order of dismissal. Defendant appeals to this court from this last order.

We think the evidence clearly justified the conclusion of the trial court that the notice and bond were actually filed in time, and that the indorsements of the time of filing were a mistake. The case of plaintiff was stronger than that made on the motion to dismiss.

Appellant contends further that plaintiff’s exclusive remedy was to appeal from the first order. We do not think so. The power of the court to correct errors and mistakes, and to modify its judgments and orders is not limited to nonappealable orders. It does not appear that written notice of the first orders was given, and hence the time to appeal had not expired. It is clearly the rule that the court may, for good cause shown, modify or set aside its judgments or orders on motion at any time within the period for taking an appeal. G. S. 1913, § 7786; Pulver v. Commercial Security Co. 135 Minn. 286, 160 N. W. 781.

Order affirmed.