Moot v. Searle

¹ Reported in 206 N.W. 447. Action to recover compensation for personal services. Judgment was entered against defendant by default and he appeals from the order denying his motion to relieve him from the default, vacate the judgment and permit him to answer. The affidavits against the motion indicate that defendant has had much experience as a defendant in civil cases, and as a result possesses much more information concerning the service of a summons than he admits in his own affidavits. The showing for plaintiff indicates that when this service was made upon defendant he knew perfectly well what was happening.

According to plaintiff, her former attorney having failed to procure service upon defendant, she undertook the task herself. With the papers in her possession, she found defendant at an apartment building in St. Paul. He was manager of the property and plaintiff asked the janitor to serve the papers, which he did, after plaintiff had said to defendant: "I have come to make service of papers upon you."

Defendant's principal contention is that he simply forgot the transaction, suggesting in that connection that he did not suppose that a summons could be served in that way. Service was made January 23, 1924; judgment was not entered until March 27, 1925, and this motion was made June 20, 1925. Under the circumstances, while we disapprove of the manner in which the summons was served, we cannot say that there was any abuse of discretion in denying defendant's motion to be relieved from his default.

Order affirmed.