Allen v. Coe

Dodge, J. The order made seems to be entirely within the discretion of the court. Coe applied for a modification of the judgment and such other relief as might be equitable. Plaintiffs urged their equitable rights, and the propriety of protecting them as a condition of granting to Coe the favor which he was asking of the court, and to which he had no absolute right after a complete default. In granting that favor, the court might properly have imposed any reasonable conditions which would protect the equities of the plaintiffs. The setting aside of the judgment, and giving both parties opportunity for a trial upon their rights, was a legitimate method for protecting such equities. One of appellant’s principal contentions is that the judgment was erroneous, and that he had a strict right to have eliminated from it that error, to wifi, the requirement of payment for improvements as a condition of redemption, no such improvements being alleged in the complaint. He invokes the rule that upon default the judgment cannot exceed the demand of the complaint. Examination of the complaint discloses that the relief granted by the judgment was within, rather than in excess of, that demand. The relief prayed was the entire exclusion of Carlson and his assigns from any interest in the land, partly on the ground that by his declaration and laches, and by reason of the plaintiff’s acts in reliance thereon, any claim by him had become inequitable. The judgment, instead of granting the full relief of complete foreclosure and bar of Carlson and quieting title in [639] plaintiffs, awarded only that result upon certain conditions; it gave to tbe plaintiffs and took from tbe defendant less than tbe complaint demanded. Being witbin the field of the court’s discretion, we cannot consider such discretion to have been abused. Plaintiffs’ equities, as apparent from the complaint and from tbe showing on the motion, were most persuasive, and invited the most careful attention of the court. The full and complete protection thereof by imposing upon the applicant, Coe, merely the condition of trying the rights of the respective. parties, and that, too, without terms imposed upon him, was certainly liberal enough. This order granting a new trial is one of those from which, by express designation, an appeal is given. Subd. 3sec. 3069, Stats. 1898. On finding no- abuse of discretion, we should affirm, instead of dismissing appeal. It is governed by the same rule as an order granting, refusing, or modifying an injunction. McElroy v. Minn. P. H. Co., ante, p. 116. By the Court.— Order affirmed..