Barker v. Keith

By the Cowrt McMillan, J. Where a judgment is set aside on the ground of irregularity in the entry of judgment, the order is appealable. Dunnell et al. v. Warden et al., 6 Minn. 287. But when it is set aside in order to grant relief to the defendant under Sec. 94, Ch. 60 of the Comp. Stat., it is within the discretion of the court, and will only be reviewed in ease of abuse of discretion. Jorgenson v. Boehmer et al., 9 Minn. 181, and authorities cited. This case we think comes within the latter class of cases. It is true the affidavit upon which the motion is based, states facts which show an attempt to serve an answer, but the facts are so far from constituting a valid service, that we do not presume they were relied upon to show irregularity in the judgment, but rather to excuse the default of the defendant. This attempted service, however, we are of opinion, was made within the time limited by the stipulation for answering. The language of the stipulation is “ that said defendant have until the sixth day of March, 1865, to answer herein, and no longer, and that in consideration of such extension of the time to answer herein, the plaintiff shall have judgment in this cause for the amount claimed in the complaint herein, without further notice, unless Bebecca P. Black shall within the time above mentioned, and on or before March 6, 1865, apply to said-District Court, or to the Judge thereof, for leave to defend such action [70] and be allowed to come in and defend the same.” In the absence of anything qualifying its meaning, the word “until” might perhaps be regarded as exclusive in its signification, but its import may be ambiguous, in which case its meaning will be determined from the whole text, or instrument in which it is used. The King v. Stephen and Agnew, 5 East. 250. In this instance, if there was nothing to modify it, it would probably exclude the sixth day of March, but the subsequent language, “ unless the said Rebecca E. Black shall within the time above mentioned, cmd on or before March 6, 1865, apply,” &c., we think qualifies its signification. Here are two limitatations of the time for her appearance ; it must be “ within the time above mentioned,” and also “ on or before the sixth of March.” The sixth of March, therefore, must be within the time above mentioned, and the time above mentioned is the time allowed to the defendant to answer; the word “ until ” must therefore be inclusive, and embrace the 6th of March, the day on which the attempt to serve the answer was made. Ifj therefore, the mode of the service had been proper, the service would have been good; but as an effort was made to serve an answer in time, we think, under the circumstances, the motion was addressed to the discretion of the court, unless a further objection of the plaintiff is valid. It is urged that the stipulation has the force and effect of a contract, and that by its terms the defendant agreed that the plaintiff should have judgment for the amount claimed in the complaint, if the contingencies embraced in the stipulation did not transpire, and that the order of the District Court setting aside the judgment and permitting the defendant to answer, virtually annuls the stipulation. As to the effect of stipulations in judicial proceedings, between the attorneys or parties in a cause, we express no opinion ; they are certainly not to be lightly disregarded. But we are unable to construe the terms of this stipulation as the plaintiff does. The language of the stipulation is, “that in [71] consideration of such, extension of the time to answer herein, the plaintiff shall have judgment in this cause for the amount claimed in the complaint herein without further notice, ”&c. We think the only effect of this language is to waive further notice of the proceedings to obtain judgment, to which the defendant’s attorney, having giving notice of appearance in the action, was entitled. The consent of the defendant conferred no right on the plaintiff to take the judgment; that existed under the statute; nor did it add anything to the force or effect of the judgment. As long as it remains, it is the final determination of the rights of the parties. But by statutory provision, the court may at any time within one year after notice thereof, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect. Com. Stat. Sec. 94, Ch. 60. There is certainly no express waiver of this right in the stipulation, and we think none can be reasonably implied from it. While the consent of the defendant might address itself to the court as going to disprove the existence of alleged grounds in support of the motion, it does not go to the jurisdiction of the court to entertain the motion. The judgment remains as' any other judgment, under the control of the District Court. It was therefore within the discretion of the court to grant or deny the motion in this case, and the action of the court is only renewable in case of abuse of that discretion. As no such abuse exists here, we think the appeal should be dismissed.