Cited by

Geisberg v. O’Laughlin, 88 Minn. 431 , ; Berkman v. Weckerling, 247 Minn. 277 , 77 N. W. (2d) 291 ; Johnson v. Johnson, 243 Minn. 403 , 68 N. W. (2d) 398 .

Geisberg v. O’Laughlin, 88 Minn. 431 , .

Geisberg v. O’Laughlin, 88 Minn. 431 , ; Lenhart v. Lenhart Wagon Co. 211 Minn. 572 , 2 N. W. (2d) 421 .

4 In re Trusteeship Under Will of Melgaard, 200 Minn. 493 , 507 to 511, , 648 to 650; Bruski v. Bruski, 148 Minn. 458 , ; Geisberg v. O’Laughlin, 88 Minn. 431, 435 , ; see, 12 Wd.

Geisberg v. O’Laughlin, 88 Minn. 431 , ; Baker v. Sheehan, 29 Minn. 235 , .

Geisberg v. O’Laughlin, 88 Minn. 431 , .

Geisberg v. O’Laughlin, 88 Minn. 431 , .

1927, § 9405; Geisberg v. O’Laughlin, 88 Minn. 431 , ; Clark v. Marvin, 140 Minn. 285 , .

Geisberg v. O’Laughlin, 88 Minn. 431, 435 , .

Geisberg v. O’Laughlin, 88 Minn. 431 , ; Cornish v. Coates, 91 Minn. 108 , ; Clark v. Marvin, 140 Minn. 285 , ; Mason v. MacNeil, 186 Minn. 278 , .

Geisberg v. O’Laughlin, 88 Minn. 431 , , is not at all an authority to the contrary, for there the fraud successfully complained of was a false affidavit of publication which resulted in the jurisdiction of the court being fraudulently invoked.

The case of Geisberg v. O’Laughlin, 88 Minn. 431 , 93 N W. 310, is conclusive against this contention.

If the case is brought within the statute, it is the duty of the court to grant relief (Geisberg v. O’Laughlin, 88 Minn, 431, ); but the right to have a judgment vacated because of fraud of the prevailing party is not an absolute one.

Geisberg v. O’Laughlin, 88 Minn. 431 , .

Moudry v. Witzka, 89 Minn. 300 , ; Watkins v. Landon, 67 Minn. 136 , ; Geisberg v. O’Laughlin, 88 Minn. 431 , ; O’Brien v. Larson, 71 Minn. 371 , .

In Geisberg v. O’Laughlin, 88 Minn. 431 , , the *456 rule of Wieland v. Shillock is referred to as being in accord with authorities generally, and the right to bring a separate action to vacate a judgment obtained by fraud, after jurisdiction acquired, is based on the express authority granted by section 4277, R. L. 1905.

d upon their merits.” In Hass v. Billings, 42 Minn. 63, 67 , , the court did not purport to “lay down a general rule to determine what cases come within it.” “It is safer” as it was there said “to determine from time to time, as each case may arise, whether the circumstances bring the case within what we deem to be its spirit and intent.” And see Brown, J., in Geisberg v. O’Laughlin, 88 Minn. 431 , .

We unhesitatingly adopt *196 this view, and extend the doctrine applied in Young v. Young, 17 Minn. 153 (181); Bomsta v. Johnson, 38 Minn. 230 , ; Olmstead v. Olmstead, 41 Minn. 297 , ; Colby v. Colby, 59 Minn. 432 , ; and Geisberg v. O’Laughlin, 88 Minn. 431 , — to an issue involving the jurisdiction of the court.

Geisberg v. O’Laughlin, 88 Minn. 431 , .

We held in Geisberg v. O’Laughlin, 88 Minn. 431 , , where a default judgment was obtained by fraud, that the right to maintain an action under this statute to set it aside was concurrent with the remedy by the statutory motion to vacate such judgment, but the statute was never intended to apply to a case like the one at bar, which had been fully tried