Pine Mountain Iron & Coal Co. v. Tabour , 55 Minn. 287 ( 1893 )

BooK, J.

An examination of the record in this case satisfies us that the court below was fully justified in the exercise of its discretionary power in refusing the application of the defendant to vacate the judgment rendered against him, and allow him to answer. In its finding, the court states that the counter affidavits introduced on the hearing by plaintiff against those of the defendant upon his application were true. These affidavits strongly contradicted those of the defendant. There is not the slightest ground to say that the court below abused its discretionary powers in this respect. That the defendant was guilty of inexcusable neglect is too apparent to need discussion. There is no finding of the court below upon the question of whether the defendant, by neglecting to appear and answer, is barred by the statute from bringing an action upon his alleged counterclaim to the cause of action set up in the plaintiff’s complaint, although it is referred to in its memorandum. The real question before the court seems to have been the inexcusable neglect in the matter of not appearing and answering. IJpon that question the court below, in the proper exercise of its discretionary power, found against the defendant, and, upon the record, we do not think it should be reversed here. The other question, of whether the defendant is barred from bringing an action upon the matters which he seeks to bring into the suit by vacating the judgment and answering, can be determined in another action if such action is brought. We do not determine that question now, as it is not properly before us. The order of the court below is affirmed.

(Opinion published 56 N. W. Rep. 895.)