By the Court
McMillan, J.This is an appeal from an order of the District Court, setting aside a judgment as to the Defendant Catherine Boehmer, and granting certain relief to the Defendant William Boehmer, upon terms Avhich appear in the order.
The summons in the action was served on the Defendants, Catharine and William Boehmer, on the 31st day of July, 1862, as appears by the return of the sheriff of McLeod county. A notice of retainer was served by Frank Warner, attorney for Defendants, the date of the service of which appears to be the 15th of August, 1862. Judgment was entered on the 23d of October, *1821862, and on the 5th of August, 1863, execution was levied on certain real estate.
It appears from the affidavit of Catharine Boehmer, made on the 2d September, 1863, that, from the time of retaining her attorney until the date of the affidavit, she called frequently on her attox-ney, and was always informed by him that he had received no copy of the complaint, and that it would be improper to enter a judgment in the action until a.copy was served upon him. It also appeared that the Defendant, "William Boehmer, enlisted in the military service of the United States on the 20th of October, 1862, and, at the date of the affidavit, had no knowledge of the entry of the judgment.
By the affidavit of Mr. Warner, it appears that he had no knowledge of the entry of the judgment until May or June, 1863.
The Plaintiff, in his affidavit, states, that the Defendant Catha-rine Boehmer, and one Bray, on the 'Ith of April, 1863, examined the record of the judgment, and knew and understood its contents and effect, and that WilliamBoehmer was in different to this motion.
A motion for this relief was made and noticed for the 26th of September, 1863, and the hearing postponed till October 11th, 1863, at which time it was denied, without prejudice, for insufficiency of the notice, and, subsequently, by stipulation, the matter was renewed on the original motion papers, reserving the Plaintiff’s right to insist on laches, delay and negligence of the Defendants in not sooner making the motion.
This motion is based upon sec. 94 Compiled Statutes, p. 544. Proceedings of this character have several times claimed the attention of the Court, and it is now well settled by its decisions that applications under this section for relief of this character are addressed to the discretion of the Court, and orders thereoxi, where no abuse of discretion exists, are not appealable. Myrick vs. Pierce, 5 Minn., 65; Groh vs. Bassett, 7 id., 330; Merrit vs. Putnam, id., 493. In this case the motion appeal’s to have been made within one year after notice of the judgment; the Court below, therefore, had jurisdiction, and there is no pretence of an abuse of its discretion; this order therefore is not appealable.
The appeal must be dismissed.