St. Paul Land Co. v. Dayton

40 N.W. 66, 39 Minn. 315, 1888 Minn. LEXIS 100

Opinion

Mitchell, J.

Appeal from an order discharging an order to show ■cause why defendants should not be allowed to answer. We must assume that the defendants were, at the time this order was made, in default. If they were not, there was no necessity for applying to the court for leave to answer, and they were not prejudiced by the order appealed from. There was certainly no abuse of discretion in denying the application. First, the long delay, nearly five months, in making it, was npt satisfactorily excused. ’ Second, the proposed answer sets up no facts constituting a defence. The execution of the contract with plaintiff, as alleged in the complaint, is admitted. The denial of the corporate character of plaintiff is immaterial. The allegation that plaintiff has never offered or tendered performance on its part, or demanded performance on part of the defendants, is also immaterial, so long as the plaintiff alleges readiness and willingness to perform in the complaint. The matter could at most only affect the question of costs. Those portions of the answer attempting to avoid specific performance on the ground of fraud, mistake, ignorance, etc., do not allege any facts that would constitute any ground of relief either in law or equity. -

Order affirmed.