Roberts v. Enderlin Investment Co.

132 N.W. 145, 21 N.D. 594, 1911 N.D. LEXIS 131

• Court: North Dakota Supreme Court
• Decided: June 6, 1911
• Status: Published

Opinion

Nuchols, Special Judge.

This is an action to determine adverse claims to a certain tract of land described in the complaint, situate in the county of Wells and state of North Dakota. The complaint is ñn the regular statutory form. The respondent, T. L. Beiseker, is the only defendant who appeared in any manner in the action. The answer of the respondent, T. L. Beiseker, denies that the plaintiff has any interest in said land, except as the vendor in a certain contract in writing for the sale thereof to one William Wagner. Said answer further alleges, in substance, that said defendant succeeded to all the rights of said William Wagner under said contract, by purchase at a sale under execution of all his interest and equity in said land; that said defendant has tendered to plaintiff the balance of the purchase price of said land, according to the terms of said contract, and prays that plaintiff be required to execute and deliver to said defendant a deed to the said land, upon payment to plaintiff of said purchase price.

Plaintiff’s reply admits the execution and delivery of said contract, but alleges a mutual rescission and cancelation thereof prior to the commencement of this action; and further alleges that the sale under execution of the interest of said William Wagner in said land was void, for reasons which will be considered hereafter.

The action was tried to the court without a jury, and judgment was entered directing plaintiff to execute and deliver to the respondent, T. L. Beiseker, a good and sufficient deed of warranty to the land, upon the deposit by said respondent, with the clerk of the district court, of the sum of $2,766.98, the amount found to be due the plaintiff under said contract, and from which was to be deducted the costs of the action. From this judgment plaintiff appeals to this court, and demands a review of the entire case under § 7229 of the Code.

The record is rather voluminous, and we shall not state all the facts, but only such ultimate facts as we deem necessary to an understanding of this opinion.

On the 16th day of June, 1908, appellant, who was then the owner of the land in question, contracted in vuiting to sell the same to one William Wagner for the sum of $2,800, to be paid by delivering to appellant each year a designated share of the crops grown thereon, until said sum was paid. Said Wagner delivered to appellant his share of the crops for the year of 1907, which was credited on the purchase price of said land, but in 1908, Wagner abandoned the land before the crops of that year were harvested. Appellant thereupon took possession and has ever since been in possession of the land. On the 6th day of March, 1909, prior to the commencement of this action, said Wagner, by an instrument in writing, duly acknowledged, released, and relinquished all his right, title, and interest in the land to appellant. On the 11th day of August, 1908, before Wagner had released his interest in said land, respondent, Beiseker, attached same in an action in the district court of Wells county, against Willie Wagner, who is the same person as William Wagner, vendee in said contract, to recover an alleged indebtedness from said Wagner to said respondent.

On the 12th day of August, 1908, said respondent filed in said action an affidavit stating in substance that the residence and address of said Wagner were unknown, and that personal service of the summons could not be had on him in this state to the best knowledge, information, and belief of affiant. Summons in said action was published once each week for six successive weeks in a proper newspaper, the first publication being on the 14th day of August, 1908, and the last publication on the 18th day of September, 1908.

On the 25th day of August, 1908, the sheriff made and filed his return in said action, certifying that the summons therein was received by him on the 11th day of August, 1908, and that after diligent inquiry he was unable to make service thereof on said Wagner. No other attempt was made to serve the summons on Wagner; he did not appear in any manner in the action, and judgment by default was taken against him for a sum therein specified, and the judgment directed the sale of the attached property to satisfy the same.

On the 19th day of April, 1909, the sheriff of said county of Wells purported to sell to the respondent, Beiseker, all the equity and interest of said Wagner in the land in question, pursuant to a special execution issued on said judgment; and delivered to said respondent a certificate of sale therefor, and no redemption therefrom has ever been made. Before the action at bar was commenced, appellant was notified by respondent, Beiseker, that he had succeeded to the rights of said Wagner under said contract, and was ready, able, and willing to perform all the conditions thereof to be performed by said Wagner; but appellant refused to accept such performance by said respondent.

Appellant is the sole and unqualified owner of the land, unless the respondent, T. L. Beiseker, acquired the rights and interest of said William. Wagner in said contract, and is entitled to a deed upon the performance of the conditions thereof to be performed by the said Wagner. If said respondent has any interest in the land, the same was acquired by purchase at the sale under execution of the equity and interest therein of William Wagner, the vendee in said contract. But counsel for appellant contend that the judgment on which the execution was issued is void for several reasons, one of which reasons is that the return of the sheriff was not filed with the clerk of court at the time the affidavit for publication of the summons was filed, nor until after the summons had been twice published.

The cases in which, and the manner in which, service of the summons may be made by publications, are specified in § 6840 of the Code, which reads as follows: “Service of the summons in an action may be made on any defendant by publication thereof upon filing a verified complaint' therein with the clerk of the district court of the county in which the action is commenced, setting forth a cause of action in favor of the plaintiff and against the defendant, and also filing an affidavit stating the place of defendant’s residence, if known to the affiant, and if not known, stating that fact, and further stating: 1. That the defendant is not a resident of this state; or, 2. That the defendant is a foreign corporation, joint stock company, or association, and has no agent or person in this state upon whom service may be made under the provisions of § 6838; or, 3. That personal service cannot be made on such defendant within this state to the best knowledge, information, and belief of the person making such affidavit; and in cases arising under this subdivision the affidavit shall be accompanied by the return of the sheriff of the county in which the action is brought, stating that after diligent inquiry for the purpose of serving such summons, he is unable to make personal service thereof upon such defendant.”

The affidavit was filed on the 12th day of August; the first publication of the summons was on the 14th day of August, and the sheriff’s return was made and filed on the 25th day of August, thirteen days after the affidavit was filed and eleven days after the first publication of the summons, and after the summons had been twice published; and the summons was only published four times after the sheriff’s return was filed. Such publication was the only attempt to serve the summons on the defendant therein. We must hold that this was not a sufficient compliance with the requirements of subdivision 3 of § 6840 of the Code, under which that case arose, to confer jurisdiction on the court to enter any judgment against the defendant, in the absence of any appearance by him in the action. The provisions of our Code are to be liberally construed, with a view to effect its object and to promote justice, yet, by the great weight of authority, including courts of states having statutes similar to ours for the liberal construction of the provisions of the Code, the rule is that statutes providing for the service of summons in any other manner than by personal service must be literally complied with and strictly followed, and we decide that the requirements of § 6840 of the Code must be strictly complied with to render effective an attempted service of summons by publication. 32 Cyc. 467; Cohn v. Kember, 47 Cal. 144; Stull v. Masilonka, 74 Neb. 309, 104 N. W. 188, 108 N. W. 166; Fink v. Wallach, 47 Misc. 247, 95 N. Y. Supp. 872; Gilmore v. Lampman, 86 Minn. 493, 91 Am. St. Rep. 376, 90 N. W. 1113; Granger v. Superior Ct. Judge, 44 Mich. 384, 6 N. W. 848; Harness v. Cravens, 126 Mo. 233, 28 S. W. 971; Hafern v. Davis, 10 Wis. 501; Paxton v. Daniell, 1 Wash. 19, 23 Pac. 441; Beckett v. Cuenin, 15 Colo. 281, 22 Am. St. Rep. 399, 25 Pac. 167; Mills v. Smiley, 9 Idaho, 325, 76 Pac. 786.

In Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708, this court, construing a former statute providing for the publication of summons upon the order of court, said: “The statute was mandatory, and a failure to comply strictly therewith operated to confer no jurisdiction of the person of the defendant.” In the case of Rockman v. Ackerman, 109 Wis. 639, 85 N. W. 491, the supreme court of Wisconsin, construing a statute providing for the service of summons by publication in cases therein specified, and providing that the order shall direct the service of the summons by publication thereof, and that on or before the date of the first publication, plaintiff shall mail copy of the summons and complaint as therein prescribed, held that the mailing of the copy before the making of the order was insufficient, and that subsequent publication of the summons conferred no jurisdiction of the person of the defendant.

Service of summons by publication is purely of statutory creation, and is effective only as the statute makes it so. Whatever the statute prescribes as a prerequisite condition cannot be dispensed with, and a failure to strictly eomply with the provisions of the statute renders the attempted service fatally defective. When a proceeding is commenced to obtain service of tbe summons by publication, tbe defendant bas a right to examine tbe records in tbe case and to govern bis conduct accordingly. It is therefore necessary that proof of tbe right, under tbe statute, to make service of tbe summons by publication, should appear in tbe files and records of tbe action before publication of tbe summons is commenced.

Tbe filing of tbe required affidavit prior to the publication of tbe summons is a jurisdictional prerequisite by tbe provisions of § 6840 of tbe Code; and in cases arising under subdivision 3 of said section, tbe provision thereof that tbe affidavit therein specified, stating that personal service of tbe summons cannot be bad on tbe defendant in this state to tbe best knowledge, information, and belief of affiant, shall be accompanied by tbe return of tbe sheriff certifying that after diligent inquiry or tbe purpose of serving tbe summons, be is unable to make personal service thereof, requires that such return of tbe sheriff be filed in tbe action prior to tbe first publication of the summons.

. Tbe statute requires, in such cases, that tbe inquiry by tbe sheriff for tbe purpose of serving tbe summons be made prior to tbe making and filing of tbe affidavit, and that both such return and affidavit be filed in tbe action prior to tbe first publication of tbe summons. Tbe filing of tbe return of tbe sheriff, in cases in which tbe same is required, prior to tbe first publication of tbe summons, is as truly a jurisdictional prerequisite as is tbe filing of tbe required affidavit; and a failure to file such return is fatal to tbe validity of tbe service of tbe summons by publication. Publication of the summons prior to tbe filing of tbe return of tbe sheriff, in cases in which such return is required, is unauthorized by tbe statute, is equivalent to no.publication, and confers no jurisdiction on tbe court to render a judgment against any defendant on whom there was no service of tbe summons, and who did not appear in tbe action.

We must therefore bold that in tbe action by tbe respondent, T. L. Beiseker, against Wagner, tbe court acquired no jurisdiction by publication of tbe summons therein, for tbe reason that tbe return of tbe sheriff, required therein, was not filed prior to tbe first publication of tbe summons, and consequently tbe judgment therein against Wagner was absolutely void. Tbe judgment being void, it follows that all subsequent proceedings based thereon were void, and tbe attempted sale under a void execution of the interest and equity of said Wagner, in tbe land in question, to the respondent, T. L. Beiseker, was absolutely-void, and be acquired no interest whatever in tbe land by tbe purchase at such void sale. Other reasons are assigned by counsel -for appellant why said judgment is void, but we need not consider them in this opinion.

By § 6940 of tbe Code, tbe lien of an attachment lapses and ceased to exist, unless tbe summons is served personally, or tbe publication thereof commenced within sixty days after tbe issuance of tbe warrant of attachment. Tbe publication of tbe summons therein referred to means legal publication. As no summons in the attachment action was served on Wagner, and tbe summons in said action was never legally published, therefore tbe lien of tbe attachment ceased to exist before tbe action at bar was commenced, and tbe respondent, T. L. Beiseker, bad no estate or interest in, or lien or encumbrance upon, tbe land in question when this action was tried in the district court, and judgment should have been entered therein in favor of plaintiff and appellant, quieting bis title to the land against all claims of each and all of tbe defendants.

Tbe judgment of the district court is therefore reversed, and tbe cause remanded for tbe entry of judgment in the district court in favor of tbe plaintiff and appellant, in accordance with this opinion, with costs to plaintiff and appellant in this court and tbe court below, to be taxed in tbe district court. It is so ordered.

All concur, except Morgan, Cb. J., not participating, and Burke, J., disqualified, having tried tbe case in tbe lower court; Hon. A. G-. Burr, Judge of tbe Ninth Judicial District, and Hon. S. L. Nuchols, Judge of tbe Twelfth Judicial District, sitting by request.