Dr. Shoop Family Medicine Co. v. Oppliger

Peb Cueiam.

Suit to recover the price for a bill of goods sold in 1908. Personal service of summons in October, 1912. Judgment by default entered in February following, and in May thereafter defendant applied to have the default opened and for leave to answer. The court permitted the answer but let the judgment, which was a lien on defendant’s real estate, stand to abide the result of a trial. Plaintiff appeals.

The affidavit supporting the application and the proposed answer tend to show a meritorious defense. In December, 1908, suit was brought by plaintiff against defendant and her husband upon the same cause but was afterwards dismissed. In June, 1912, Dr. Shoop’s Laboratories, Inc. sued the husband alone for the same bill and obtained judgment. When served, defendant gave the summons to her husband and relied upon him to take the proper steps to protect her. He appears to have labored under the impression that no judgment could be entered against his wife after judgment obtained against him. Defendant was not in good health and left the state shortly after the summons was served and claims she knew nothing about the judgment till she returned in the spring. She further shows that the goods for the price of which the suit is brought were bought upon the written order signed by her husband, that she had no interest in the drug store run by him for which the goods were purchased. This is in a measure contradicted. But apparently a strong case of a meritorious defense is presented.

The order must stand unless there was an abuse of discretion. In Altmann v. Gabriel, [ 28 Minn. 132 , 9 N. W. 633 ] the order opening the default was reversed mainly because of an unexcused delay of almost a year after knowledge of the judgment. The absence of an affidavit of merits resulted in a reversal of an order opening the default in People’s Ice Co. v. Schlenker, 50 Minn. 1 , 52 N. W. 219 . McClure v. Clarke, 94 Minn. 37 , 101 N. W. 951 , presented no excuse whatever, and the delay was two years. Hoffman v. Freimuth, 101 Minn. 48 , 111 N. W. 732 , was an application made after expiration of a year from knowledge of the entry of judgment. The case of John T. Noye Mnfg. Co. v. Wheaton Roller-Mill Co. 60 Minn. 117 , 61 N. W. 910 , must be regarded as extreme when the ground upon which it is placed is considered. It should not be further extended. Walsh v. Boyle, 94 Minn. 437 , 103 N. W. 506 .

It is the duty of the courts to relieve a party from default, if he furnishes any reasonable excuse for his neglect and shows a defense of fair merit, no substantial prejudice appearing to the other side from the delay. 2 Dunnell, Minn. *537 Dig. § 5013; McMurran v. Bourne, 81 Minn. 515 , 84 N. W. 338 ; Barrie v. Northern Assurance Co. 99 Minn. 272 , 109 N. W. 248 . Clifford v. Great Northern Ry. Co. 118 Minn. 22 , 136 N. W. 260 , also disposes of the point that there was no sufficient affidavit of merits.

Order affirmed.