De Laittre v. Chase

Start, C. J. Action brought in the district court of the county of Aitkin to determine adverse claims to the land described in the complaint. Service of the summons was by publication. The defendants did not ap.pear, and a default judgment, on May 21, 1909, was entered, granting the plaintiff the relief asked for in his complaint. On May 4, 1910, the court made its order requiring the plaintiff to show cause on May 11 next thereafter why the judgment should not be vacated, and the appellants, Robert- Anderson and Alfred Teisberg, be permitted to serve their answers herein. The order was based on the affidavit of Anderson to the effect that he was the owner of an interest in the land, and that he had no notice of the pendency of the action prior to October 12, 1909, and then only vague information, but he did not state what in fact his information was; his proposed answer, with an affidavit of merits; and the affidavit of Teisberg to the same effect, except that he did not learn of the pendency of the action prior to September 12, 1909. The plaintiff’s affidavit in opposition was to the effect that he was the sole owner of the land, and had paid the taxes thereon since 1889; that in June, 1909, he saw Teisberg, who also appears as attorney for Anderson, who then referred to the judgment, and stated that he represented the owners of the land, and asked the plaintiff to make an offer for the land, or name a sum which he would take for his interest in the land; that the plaintiff declined so to do, and that thereupon Teisberg said he had a year in which to apply for a vacation of the judgment. This affidavit of the plaintiff was not contradicted, except in so far as it conflicted with the affidavits upon which the order was based. The record discloses no attempt to excuse the delay m applying to the court for relief after the appellants learned that the judgment had been entered. Upon this showing the trial court made its order denying the appellants any relief, and discharging the order to show cause, from which they jointly appealed. The statute (R. L. 1905, § 4113) provides that, where the summons is not personally served, the defendants may be permitted to defend at any time within one year after judgment. This statute does not require the defendant to show that he was diligent in ac [510] quiring notice of the pendency of the- action; but, after he has actual notice of the judgment, his duty to exercise diligence in c iking to be relieved therefrom begins. If, however, he shows a good defense, and it does not appear that he has lost his right by unexcused laches 'after notice, he is entitled to an opportunity to defend the action as a matter of right, and not of discretion. Frankoviz v. Smith, 35 Minn. 278, 28 N. W. 508; Lord v. Hawkins, 39 Minn. 73, 38 N. W. 689; Cutler v. Button, 51 Minn. 550, 53 N. W. 872; Fifield v. Norton, 79 Minn. 264, 82 N. W. 581; Bogart v. Kiene, 85 Minn. 261, 88 N. W. 748; Fink v. Woods, 102 Minn. 374, 113 N. W. 909. It conclusively appears from the record that the appellants had actual notice of the judgment at least seven months before they took any steps to be relieved therefrom, and that the trial court was justified in concluding that the laches of the appellants was such that they were not entitled to any relief. Order affirmed.