Miller v. First National Bank

Per Curiam.

This action was brought to set aside a judgment, and proceedings subsequently had thereon, on the grounds: (1) That there was no service of the summons in the action; and (2) that the judgment was procured by fraud "and perjury. At the trial below it appeared without serious dispute that the summons was duly served, thus disposing of the first ground of the action. *464 The only evidence offered in support of the claim that the judgment was procured hy fraud and perjury was that plaintiff, defendant in that action, was not indebted to the plaintiff therein, defendant here; that her signature to the note upon which that action was brought was a forgery and so known to plaintiff in that action, and to its officers and agents. This evidence was excluded by the trial court. The ruling was correct. The proffered evidence was not available to defendant in this action. It should have been interposed in defense in the former action. Hayward v. Larrabee, 106 Minn. 210 , 118 N. W. 795 ; Cremer v. Michelet, 114 Minn. 454 , 131 N. W. 627 ; Stewart v. Duncan, 40 Minn. 410 , 42 N. W. 89 . Proceedings subsequent to the judgment are immaterial. Young v. Lindquist, 126 Minn. 414 , 148 N. W. 455 . If plaintiff was not indebted upon the note sued upon in the former action, she should have interposed her defense therein. Defendant in no way misled her or in any manner prevented her from, so doing. And the fact that her husband failed to call her attention to the action and the service of the summons cannot be charged to plaintiff in the action. The service was made by delivery to the husband of a copy of the summons for the wife, at the house of their usual abode. Henry v. Meighen, 46 Minn. 548 , 49 N. W. 323, 646 , is not in point, and the decision there rendered cannot here he applied. In this case there was no excess over and above the bid at the execution sale. The amount bid concurred with the amount due on the execution with costs.

Order affirmed.