Whitcomb v. Shaffer

11 Minn. 232

• Court: Supreme Court of Minnesota
• Decided: January 15, 1866
• Status: Published

Opinion

By the Oowrt

Berry, J.

This is an appeal from an order of the District Court of Olmstead county, setting aside a judgment and subsequent proceedings, and allowing the respondent to come in and answer. Assuming, as is claimed by the counsel for the appellant, that the application for this relief was made under Section 94, page 544, Pub. Stat.. and not under Section 3, page 91, Laws of 1864, it has heretofore been settled in this Court, that such applications are addressed to the discretion of the court below, the exercise of which will not be interfered with, except in cases of palpable abuse. Merritt v. Putnam, 7 Minn., 493. We see no evidence of any abuse in this case, which would warrant us in reviewing the action of the District Court. This judgment was entered up on failure to answer, against a non-resident defendant, in an action commenced by publication of summons, without any service by mail, and it would seem that the facts set up in his answer, if found to be true, would constitute a meritorious defense to’the matters alleged in the complaint. There are, at least, some statements in the affidavits which were used upon the motion to set aside the judgment, having a tendency to show that the respondent had no knowledge of the pendency of the action, until after the rendition of the judgment. ' His application for relief was made within the year allowed by statute, and within a few months after the judgment was entered up. The effect of the order is simply to give him a day in court, an opportunity for a fair trial upon the merits, and we shall not disturb it.

Order affirmed.