Mueller v. McCulloch

Collins, J. Appeal by plaintiff in an action brought to deter mine an adverse claim to real property irom an order vacating a judgment in bis favor, and allowing the defendant to answer and defend. The latter was a resident of Kansas, and service of the summons was made by publication, the last publication being December 16, 1893. An order for judgment on default of answer was made and a judgment duly entered January 20, 1894. On February 16th defendant gave notice of a motion to vacate and set aside the judgment, and for leave to file an answer, on the sole grounds that the summons had been served by publication, and that he had a good and substantial defense on the merits. From the files in the case and the affidavits used on the hearing of the motion it appeared that on the 8th of November, 1893, copies of the summons and complaint were mailed to defendant, postage prepaid, at his place of residence in the state of Kansas, and it was conclusively established that these copies were personally received by him at such place on the 11th day of November. It was thus shown that seventy days intervened between that on which defend1 ant had personal knowledge of the pendency of the action and that on which judgment was entered. And it was also shown that for more than three months after receiving said copies defendant remained passive in the matter. He did nothing at all towards guarding his interests and protecting his, property rights until the 16th of February, when this motion was made, as before stated. The only attempted excuse or justification for the apparent delay is that he had no notice of any entry of judgment until February 1st. This, under the circumstances, was insufficient to warrant the court below in making the order appealed from. Although an application of this character, made under the provisions of 1878 G-. S. ch. 06, § 66, is largely addressed to the discretion of the court, it ought not to be favorably considered when the presumption that the party in default has been diligent after receiving notice of the pendency of the action is expressly and conclusively rebutted, as it was in this instance. Order reversed. Gtletllan, C. J., absent on account of sickness; took no part. (Opinion published 61 N. W. 455.)