Mies v. Thompson

Supreme Court of Minnesota

Mies v. Thompson

55 N.W. 44, 53 Minn. 273, 1893 Minn. LEXIS 320

DecidedMay 11, 1893

StatusPublished

This text of 55 N.W. 44 (Mies v. Thompson) 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

Mies v. Thompson, 55 N.W. 44, 53 Minn. 273, 1893 Minn. LEXIS 320 (Mich. 1893).

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Opinion

Gilfillan, C. J.

After the time for answering in the court below expired, upon an affidavit by the plaintiff’s attorney that no answer or demurrer had been received, nor appearance in any manner made by defendant, judgment for plaintiff was duly entered by default. Twelve days after, defendant made an application to have the judgment vacated, and for leave to answer, on an affidavit by his attorney that, before the time to answer expired, he served an answ’er, “between the hours of í P. M. and 6 P. M., by leaving the same in the office of attorney for the plaintiff, in a conspicuous place, the attorney being absent therefrom, and this deponent not knowing the residence of said attorney.” The court below denied the motion. The affidavit was not sufficient; for serving by leaving [274]*274in a conspicuous place in the attorney’s office, in his absence, can be made only when he has no clerk therein, and there is no person in charge thereof. 1878 G. S. ch. 66, § 74. And, notwithstanding anything in the affidavit, there may at the time have been in the office a clerk of the attorney, or person having charge thereof, with whom the answer ought to have been left.

Order affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 55 N. W. Rep. 44.)

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Gilfillan, C. J.

After the time for answering in the court below expired, upon an affidavit by the plaintiff’s attorney that no answer or demurrer had been received, nor appearance in any manner made by defendant, judgment for plaintiff was duly entered by default. Twelve days after, defendant made an application to have the judgment vacated, and for leave to answer, on an affidavit by his attorney that, before the time to answer expired, he served an answ’er, “between the hours of í P. M. and 6 P. M., by leaving the same in the office of attorney for the plaintiff, in a conspicuous place, the attorney being absent therefrom, and this deponent not knowing the residence of said attorney.” The court below denied the motion. The affidavit was not sufficient; for serving by leaving [274]*274in a conspicuous place in the attorney’s office, in his absence, can be made only when he has no clerk therein, and there is no person in charge thereof. 1878 G. S. ch. 66, § 74. And, notwithstanding anything in the affidavit, there may at the time have been in the office a clerk of the attorney, or person having charge thereof, with whom the answer ought to have been left.

Order affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 55 N. W. Rep. 44.)

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Bluebook (online)

55 N.W. 44, 53 Minn. 273, 1893 Minn. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mies-v-thompson-minn-1893.