Gillette-Herzog Manufacturing Co. v. Ashton

Vanderburgh, J. The defendant appeared and demanded a copy of the complaint, which was served by mail on the 5th day of December, 1892. The service by mail gave the defendant double the time he would otherwise have been entitled to in which to answer. Judgment by default was prematurely entered by plaintiff on December 16,1892; and the answer received by mail on December 17th was refused and returned by plaintiff, on the sole ground indorsed thereon, — that the same was not served in time. The defendant had an absolute right to have the judgment set aside, because the time for answering had not expired. He accordingly applied to the District Court of Hennepin county, upon affidavit setting forth the facts, and procured a stay of proceedings, with an order to show cause why the judgment should not be set aside, procured on January 6, .and returnable January 21, 1893. Upon the hearing, the relief sought was granted. There is no doubt that the merits of the application are fairly disclosed by the affidavit and order, and that defendant was shown to be justly entitled to such relief. The plaintiff, however, seasonably objected to the form of the application, on the ground, that the rules of the District Court of Hennepin county were not complied with in making the same. These provided that an order to show •cause must be accompanied by a notice of motion setting forth the 77 grounds thereof, and that an order to show cause should not be granted when a motion can be made in the ordinary form upon notice. Such rules are very proper for courts to adopt for the orderly discharge of business; and if the court had sustained the objection, and refused the application without prejudice, this court would doubtless not have interfered. But, in its discretion, the court saw ñt to suspend their operation in this particular instance, and dispose of the application on its merits. It was competent for the court to do this, Nye v. Swan, 42 Minn. 245, (44 N. W. Rep. 9;) and as the case was rightly determined on the merits, after due notice to the plaintiff and opportunity to be heard, the order appealed from should be affirmed. (Opinion published 56 N. W. Rep. 576.)