Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-10-03
SUPREME COURT.
FULL TEXT OF DECISIONS FILED.
In the Natter Of the State Of Minnesota rs. Ger
tain Lands Situate in the County Of Aitkin,
Dorilus Morrison Petitioner

In the Natter Of the State Of Minnesota as. Ger
tain Lands Situate in the County Of Aitkin,
Dorilus Morrison Petitioner,
OPINION.
Judgment was rendered in 1876 in the coun-
ties of Crow Wing, Wadena, Cass, Itasca and
Aitkin for enforcement of the taxes against
certain lands for the year 1875, and the lands
were sold pursuant to the judgment.
Dorilus Morrison afterwa rds presented a pc
tition to the district court claiming an interest
in the lands, and claiming that by reason
of certain facts the petition stated
the lands were exempt from taxa
ton and asking that the sale
and judgment be set aside and he be allowed
to file an answer. No fact is stated aside from
his interest and the exemption as a reason for
granting the relief asked for on the hearing
the facts as stated in the petition were stipu-
lated to be true.
The court denied the application and from
the order denying it this appeal is taken.
It is objected that appeal will not lie
from such an order. We think, however, as
the application is one authorized by statute
the order is within Sub. g. Sec. g. Chap. Sc. Gen.
Stat, final order affecting substantial right
in a summary applicationiin an action after
Judgment and is therefore appealable.
The act of March 1st, 1877, session laws
chapter 70, under which the application was
made provides, (sec. 81: IF the court shall
find that the petitioner had an interest in said
land either as owner or by virtue of any lien
or lncum brance thereon. and is a minor mar
RED woman or incompetent person, or that the
taxes on said land had been paid, or that the
lands were exempt from taxation, or that the
amount for which said lands were sold was
greatly less than the value of such lands, or
that the published notice of sale was not in
fact brought to the knowledge of such person.
or that for any other reason Justice will be
promoted by the granting of such petition. the
court may in its discretion make an order set
ting aside said judgment and the proceedings
Hereunder, and allowing an answer to be
fled
By section two the petition must ask that
the Judgment be set aside and the applicant al
lowed to make an answer.
It is apparent that the establishment of the
facts specified in this section did not entitle
the appellant matter OF right to an order
setting aside the judgment and allowing an an
swer, for if such had been the intention the
granting or refusing the order wonld not have
been left to the discretion of the court, as it
expressly ls and where statute specifies GER
tain facts and provides that upon these facts
the court may in its discretion grant certain re-
lief, we cannot say that these facts and none
others appearing refusal to grant the relief is
an absence of discretion, for that would in eff
feet make the statute imperitive. No facts APP
pearing in this case other than those upon
which the statute authorizes the C1art in it's
discretion to grant or refuse an order setting
aside the Judgment the order must be af-
hrmed. GHFILLAN, G. J.