Jennrich v. Moeller

Supreme Court of Minnesota

Jennrich v. Moeller

234 N.W. 638, 182 Minn. 445, 1931 Minn. LEXIS 1194

CourtSupreme Court of Minnesota

DecidedJanuary 30, 1931

DocketNo. 28,309.

StatusPublished

Cited by2 cases

This text of 234 N.W. 638 (Jennrich v. Moeller) 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

Jennrich v. Moeller, 234 N.W. 638, 182 Minn. 445, 1931 Minn. LEXIS 1194 (Mich. 1931).

Pincite

Opinion

Pee Curiam.

Defendant Adolph W. C. Moeller appeals from an order denying his motion to open a default judgment and permit him to answer.

*446 The summons and complaint were served upon defendant personally by plaintiff’s attorney, Mr. Kueffnér. There was no such delay in making the motion as to show laches or unreasonable delay. The proposed answer set out that the defendant had gone through bankruptcy and had been discharged from the indebtedness sued upon—a valid defense if established. The only excuse for not answering, set out in defendant’s affidavit, was that at the time the summons and complaint were served upon him he informed plaintiff’s attorney that he had gone through bankruptcy, and that plaintiff’s claim was listed therein and was discharged, and “that he was then informed by said Kueffner that if that was true, that • he [defendant] did not have to worry.” Defendant then says that, “so understanding that he had nothing to worry about and would have to do nothing,” he did not pay any further attention to the matter.

The matter of opening a default, where there has been personal service of the summons, lies, almost wholly in the discretion of the trial court. 3 Dunnell, Minn. Dig. (2 ed. & Supp.) § 5035. The decision of the trial court on such a motion to reopen is to be reversed here only when it appears that the trial court has abused its discretion. We would find it difficult to reverse here on the ground of abuse of discretion even if defendant’s affidavit stood uncontradicted. But plaintiff’s attorney, by affidavit, presented on the hearing of the motion, positively denied that he made the statement attributed to him by defendant or any statement to that effect. So we have here an order made on conflicting affidavits. An order so made is not an abuse of-discretion and will not here be disturbed. Swanstrom v. Marvin, 38 Minn. 359, 37 N. W. 455; Flanigan v. Duncan, 47 Minn. 250, 49 N. W. 981; Fitzgerald v. Maher, 129 Minn. 414, 152 N. W. 772; Peterson v. Bengston, 166 Minn. 494, 207 N. W. 20.

The motion in the present case also included a motion to discharge a garnishment. No grounds for disturbing the garnishment are shown.

Order affirmed.

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Pee Curiam.

Defendant Adolph W. C. Moeller appeals from an order denying his motion to open a default judgment and permit him to answer.

*446 The summons and complaint were served upon defendant personally by plaintiff’s attorney, Mr. Kueffnér. There was no such delay in making the motion as to show laches or unreasonable delay. The proposed answer set out that the defendant had gone through bankruptcy and had been discharged from the indebtedness sued upon—a valid defense if established. The only excuse for not answering, set out in defendant’s affidavit, was that at the time the summons and complaint were served upon him he informed plaintiff’s attorney that he had gone through bankruptcy, and that plaintiff’s claim was listed therein and was discharged, and “that he was then informed by said Kueffner that if that was true, that • he [defendant] did not have to worry.” Defendant then says that, “so understanding that he had nothing to worry about and would have to do nothing,” he did not pay any further attention to the matter.

The matter of opening a default, where there has been personal service of the summons, lies, almost wholly in the discretion of the trial court. 3 Dunnell, Minn. Dig. (2 ed. & Supp.) § 5035. The decision of the trial court on such a motion to reopen is to be reversed here only when it appears that the trial court has abused its discretion. We would find it difficult to reverse here on the ground of abuse of discretion even if defendant’s affidavit stood uncontradicted. But plaintiff’s attorney, by affidavit, presented on the hearing of the motion, positively denied that he made the statement attributed to him by defendant or any statement to that effect. So we have here an order made on conflicting affidavits. An order so made is not an abuse of-discretion and will not here be disturbed. Swanstrom v. Marvin, 38 Minn. 359, 37 N. W. 455; Flanigan v. Duncan, 47 Minn. 250, 49 N. W. 981; Fitzgerald v. Maher, 129 Minn. 414, 152 N. W. 772; Peterson v. Bengston, 166 Minn. 494, 207 N. W. 20.

The motion in the present case also included a motion to discharge a garnishment. No grounds for disturbing the garnishment are shown.

Order affirmed.

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234 N.W. 638, 182 Minn. 445, 1931 Minn. LEXIS 1194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennrich-v-moeller-minn-1931.

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