#### FREDERICK C. BARWALD, AS ADMINISTRATOR v. WILLIAM THUET.1

November 9, 1923.

No. 23,573.

Refusal to vacate judgment and allow defense sustained.

The court was justified, on the showing made, in refusing to vacate a judgment in favor of the plaintiff and in denying the defendant permission to defend.

From an order of the district court for Dodge county, Senn, J., denying his motion to vacate a judgment and 'interpose a defense, defendant appealed.

Affirmed.

*H. J. Edison,*for appellant.

*John Sioendiman, Jr.,*and *J. J. McCaughey,*for respondent.

1

 Reported in 195 N. W. 768.

*95Dibell, J.

Tbe defendant appeals from an order of tbe district court of Dodge county denying bis motion to vacate a judgment and interpose a defense.

The action resulting in tbe judgment was brought in March, 1919, for an accounting between tbe plaintiff, as administrator, and tbe defendant. It resulted in findings for tbe plaintiff in tbe sum of $463.35. Tbe plaintiff moved for a new trial. It was granted. Tbe defendant appealed to this court. On May 6, 1921, bis appeal w7as dismissed. Tbe cause of tbe dismissal does not appear. Tbe case then stood for trial at tbe October, 1921, term, and was set for trial at tbe adjourned term on January 3, 1922. On December 30, 1921, it was stipulated that tbe action might be brought on for trial, to suit tbe convenience of tbe court, upon five days’ notice by either party, at Mantorville in Dodge county, or at Owatonna, in Steele county, in tbe same judicial district. On February 2, 1922, plaintiff’s attorney wrote tbe defendant’s attorney at St. Paul that be bad advised with tbe trial judge, and that the' case was set for February 8, 1922. Tbe letter received was mailed by tbe defendant’s attorney to tbe defendant in an envelope postmarked February 6, 1922. It did not reach him until February 8. It bore this memorandum of tbe attorney: “This thing speaks for itself. Call me at once upon receipt.” On February 7, 1922, tbe defendant was served with a subpoena to appear at tbe trial. Tbe officer who served tbe subpoena says that when be served it tbe defendant said: “I run my own business.” Neither tbe defendant nor bis attorney appeared at tbe trial, and judgment was entered for tbe plaintiff for $4,454.64 on February 28, 1922. Tbe defendant gave no heed to tbe letter, nor to tbe subpoena. Why bis attorney did nothing is not shown.

On December 30, 1921, when tbe time of-trial was drawing near, the defendant conveyed certain farm lands- to bis wife. In June or July, 1919, be bad made a deed to bis wife of other lands. On August 30, 1922, the plaintiff brought suit to set aside these deeds as fraudulent so that be might satisfy bis $4,400 judgment from them. Tbe defendant brought tbe summons and complaint in that *96suit to his attorney, now appearing for him, but who did not appear for him before some time in September, 1922, and then first learned of the $á,400 judgment of February 28, 1922. This motion was made on September 30, 1922.

It may be noted that in the latter part of December, 1921, the defendant mortgaged his personal property; and there is an undisputed affidavit that on 'September 5, 1922, which was after the commencement of the action to set aside the deeds, he mortgaged for •|18,000 the lands which they included.

From the early part of February until in September following the defendant did nothing. It does not appear that he was unversed in business affairs. It is not claimed that he did not appreciate the effect of the letter from his attorney, or of the subpoena calling him to the trial. He claims that he was sick at the time and his claim is substantiated; but there is no explanation of the seven months’ delay following.

Whether a judgment shall be set aside with leave to the defendant to defend is within the sound discretion of the trial court. 2 Dun-nell, Minn. Dig. § 5012, et seq. We cannot say that in this case discretion was abused. The defendant was apparently in a bad financial way, and discouraged and disheartened. He disregarded the proceedings which he knew were pending against him with some degree of wilfulness. If promptly after February 8, he had sought relief it would have been given him; The trial court might have given him an opportunity to present his defense, though his application was late, upon such terms as would fully indemnify the plaintiff for additional expenses, and trouble, the judgment rendered awaiting the result; but we cannot disturb its conclusion that he should have no relief.

Order affirmed.