(dissenting).
I am of the opinion that in the interest of justice the judgment should have been vacated and a new trial ordered insofar as the property settlement or award is concerned. Defendant has never been afforded an opportunity of appearing or presenting evidence as to the true value of his assets. Such evidence might result in an award substantially different from that heretofore made in the action.
*249According to defendant’s statement, he left the United States for Norway in February 1953 in the belief that his case would not be reached for trial until September of that year. The evidence is clear that he intended to return in time to defend the litigation. He booked a round-trip passage for his car and endeavored to obtain one for himself but could not secure the return trip through no fault of his own.
Much is made of the fact that defendant withdrew substantial funds from his depositories, respondent suggesting that such actions gave rise to an inference that he did not intend to return from his trip. The record discloses that such sums were withdrawn December 22, 1952, prior to the commencement of this action, and suggested that they were withdrawn principally because of defendant’s fear that plaintiff might exercise control over them in some manner or other, particularly those deposited in her name as trustee. I cannot see that defendant acted in violation of the trial court’s authority in this respect or how any adverse inference can be drawn therefrom. His actions prior to the commencement of the divorce should not be construed as violative of the restraining order subsequently made.
On March 16, 1953, defendant’s counsel was aware of the fact that defendant was in Norway, and the court was thus advised on that date. No attempt was made to communicate with him as to the status of his case at that time. Toward the end of May his counsel met with plaintiff’s counsel and agreed with the latter that the case be set for trial June 2, 1953. Defendant had not been consulted with reference thereto, and it was known that it would be impossible for him to return by that date. A cablegram was sent to him in Norway on May 30, 1953, about three days before trial, advising him that his case was set for hearing June 2, 1953. He immediately forwarded a cablegram to his attorney informing the latter that his first opportunity to return would bring him back toward the latter part of August 1953. This cablegram was received prior to the date set for trial, and plaintiff’s attorneys and the court were both advised of its delivery.
*250Thereafter defendant’s counsel appeared at the trial and noted his appearance but made no motion or effort to have the trial continued until defendant’s return. The trial proceeded as if by default. No evidence was submitted on behalf of defendant with reference to the value of the assets which defendant owned, and no effort was made to cross-examine plaintiff’s witnesses on this issue. As a result an absolute divorce was granted to plaintiff, and she was awarded judgment against defendant in the sum of $45,890.85 as permanent alimony and property settlement, a sum which the court found equal to one-half the value of defendant’s assets. Notes in the sum of $8,300 were given their full face value in arriving at the total valuation of such assets. From a casual examination of defendant’s inventory, it appears to the writer that the award exceeded the authorized allowance provided for in M. g. A. 518.60.
Upon defendant’s return to the United gtates, he secured his present counsel and promptly moved that the judgment entered in the divorce proceedings be set aside and that a trial on the merits be ordered. Plaintiff has not remarried and has received over $17,000 in cash to apply on her award, so that no possible prejudice could have resulted had the order been granted.
Under Eule 60.02 of the Eules of Civil Procedure the court may relieve a party from a final judgment, other than for divorce, because of “Mistake, inadvertence, surprise, or excusable neglect,” or “any other reason justifying relief from the operation of the judgment.” This rule supplants M. S. A. 544.32. In construing the latter this court in Hoff v. Hoff, 133 Minn. 86, 88, 157 N. W. 999, 1000, held that:
“* * * It is apparent that the exception referred to in section 7786, G. S. 1913 [M. S. A. 544.32], is confined to that part of the decree in a divorce action which deals with the marriage status and does not embrace the parts which relate to the custody of the children or to alimony.”
Thereunder it would seem that in the instant case there was sufficient showing of mistake and inadvertence or excusable neglect to support defendant’s motion and that in the interest of justice it *251should have been granted insofar as the judgment related to the award of alimony or property settlement.
It is true that defendant did not use good judgment in his actions prior to the trial. I doubt that in his various movements he intended to flaunt the authority of the court. Rather, his actions seem to have been motivated by the bitterness that existed between him and the plaintiff. That he acted with poor judgment because thereof should not form the basis for depriving him of his right to appear and defend the action insofar as it relates to the award or property settlement involved.