
    William Mies vs. Walter M. Thompson.
    Submitted on briefs April 28, 1893.
    Decided May 11, 1893.
    Practice — Service of Notices — Pleadings, etc.
    Service apon an attorney at his office, he being absent, can be made by leaving the paper in a conspicuous place in the office only when there is in the office no clerk of his, or person having charge thereof.
    Appeal by defendant, Walter M. Thompson, from an order of the Municipal Court of the City of Duluth, Eric L. Winje, Special Judge, made July 27, 1892, denying his application to vacate the judgment and allow him to answer.
    The plaintiff, William Mies, a tailor, made an overcoat for defendant, and brought this action to recover the agreed price, $30. Defendant did not appear or answer, and on July 11,1892, judgment was entered against him for that amount and costs. On July 22d, H. S. Lord made affidavit that he served an answer for defendant July 8, 1892, between four and six o’clock in the afternoon, by leaving the same in the office of plaintiff’s attorney in a conspicuous-place, the attorney being absent therefrom. On this affidavit and the judgment roll, defendant asked the court to vacate the judgment and allow’ him to answer. The motion was denied, and he appeals. Lord é Norton, for appellant.
    
      Geo. E. Arbury, for respondent.
   Gilfillan, C. J.

After the time for answering in the court below expired, upon an affidavit by the plaintiff’s attorney that no answer or demurrer had been received, nor appearance in any manner made by defendant, judgment for plaintiff was duly entered by default. Twelve days after, defendant made an application to have the judgment vacated, and for leave to answer, on an affidavit by his attorney that, before the time to answer expired, he served an answ’er, “between the hours of í P. M. and 6 P. M., by leaving the same in the office of attorney for the plaintiff, in a conspicuous place, the attorney being absent therefrom, and this deponent not knowing the residence of said attorney.” The court below denied the motion. The affidavit was not sufficient; for serving by leaving in a conspicuous place in the attorney’s office, in his absence, can be made only when he has no clerk therein, and there is no person in charge thereof. 1878 G. S. ch. 66, § 74. And, notwithstanding anything in the affidavit, there may at the time have been in the office a clerk of the attorney, or person having charge thereof, with whom the answer ought to have been left.

Order affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 55 N. W. Rep. 44.)  