Nicholls & Taylor v. Frederick Milling Co. , 123 Minn. 531 ( 1913 )

Per Curiam.

The summons and complaint were personally served upon defendant White on July 6, 1911. He made no appearance in the action, and judgment was rendered against him on August 7, 1911. Thereafter, and in November, 1912, defendant applied to the court below to open the judgment with permission to answer and defend in the action. The application was denied and defendant appealed.

We discover from the record no abuse of discretion in denying the application. Nearly all the material facts set forth by defendant as his excuse for not answering in time were denied by the affidavits submitted by the plaintiff in opposition to the application, and the truth of the excuse was thereby made a question •of fact. By denying the application the court below must be deemed to have found the facts against defendant. Our examination of the record discloses no reason for disapproving the conclusions of the trial court. Therefore it cannot he said that there was an abuse of discretion in denying the relief asked for.

The further contention of the defendant that the judgment was in excess of that which the complaint justified, and as to one of the causes of action therein ■stated that the complaint was fatally defective in not alleging sufficient facts, "was not presented to the court below by the moving papers, was not there considered, and therefore is not properly before this court. If the judgment is •deemed excessive, the matter should be presented to the court below.

Order affirmed.