Opinion
No. 26,691.
June 29, 1928.
Motion to vacate judgment of divorce properly denied.
Motion by defendant, himself an attorney at law, to vacate a judgment of divorce and for leave to answer, properly denied where defendant had voluntarily withdrawn the answer first interposed and permitted plaintiff to proceed as for default, defendant's showing in support of his motion being simply an attack on the evidence adduced by plaintiff and on which judgment was ordered for her.
Defendant appealed from an order of the district court for Hennepin county, Montgomery, J. refusing to set aside a judgment of divorce, relieve him from default and allow him to answer. Affirmed.
Victor M. Petersen, for appellant.
Davis Michel, for respondent.
Defendant appeals from an order denying his motion to set aside a judgment of divorce, relieve him from default and allow him to answer.
The ground upon which the divorce was sought and granted was cruel and inhuman treatment. Defendant himself is an attorney at law. He interposed an answer in due season and then, without any fraud on the part of plaintiff, withdrew it, intentionally put himself in default, permitted plaintiff to prove her case, and take judgment against him. Defendant's showing in support of his motion to be relieved from default and to answer consists in the main of an attack upon the proof adduced for plaintiff and upon which the divorce was granted. In other words, it is a belated effort by defendant to try the issues which he should have tried, if he desired to do so, upon his original answer or an amendment thereof. There is nothing in support of defendant's motion which should have appealed to the discretion of the trial court, and it was very properly exercised against him.
Order affirmed.