Turner v. Even

199 N.W. 751, 160 Minn. 238, 1924 Minn. LEXIS 736
CourtSupreme Court of Minnesota
DecidedJuly 25, 1924
DocketNo. 23,892
StatusPublished
Cited by6 cases

This text of 199 N.W. 751 (Turner v. Even) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. Even, 199 N.W. 751, 160 Minn. 238, 1924 Minn. LEXIS 736 (Mich. 1924).

Opinion

Holt, J.

In July 1918, plaintiff, on an executory contract, bought a farm in Nobles county of defendants Even and wife, agreeing to pay $34,100. A year thereafter, under a like contract, defendant Edg-ington bought the same farm of plaintiff for $42,000. In the transaction plaintiff also gave a written agreement to assign his contract with Even and wife upon payment by Edgington of $7,500 on January 15, 1921, at which time a like sum was due from plaintiff to his vendors who were to use the same to pay off a mortgage on the farm. Edgington could not make the payment, and it was agreed between all the parties that the Evens should renew the mortgage at Edgington’s expense. This was done. Edgington failed to pay an instalment of $7,500 due March 1, 1920, and interest and taxes. He was given possession when he purchased and has ever since retained it by tenant. Unable to obtain the payments due from Edgington, plaintiff brought this suit for the specific performance of the three contracts mentioned, making Even and wife and Edg-ington defendants. In the contracts there were errors in the description of the farm and in that respect reformation was asked. [240]*240Edgington was and is a resident of Iowa, but he appeared and answered, as did the other defendants. A trial was had and judgment of reformation and for specific performance was rendered July 21, 1922.

This judgment was accepted as correct by all parties to it and is not questioned now. The substance of the parts thereof which bear upon this appeal may be stated thus: It was adjudged and decreed that plaintiff have and recover judgment against defendant Edgington for the sum of $19,661.82, and certain interest, and that he shall assume and agree to pay the mortgage of $17,000 to be given back on the farm by plaintiff to the Evens; and that uipon payment of Edgington to plaintiff of said $19,661.82 and accrued interest at the rates and from the dates specified, and upon Edg-ington assuming and agreeing to pay said $17,000 mortgage plaintiff shall deed to him by good and sufficient warranty deed said farm free from all encumbrances except said $7,500 mortgage. The amount due the Evens from plaintiff was also adjudged and that upon its payment they were to deliver their deed subject to the $7,500 mortgage placed thereon as stated, and plaintiff should give them a purchase money mortgage to secure the balance of the purchase price of $17,000.

Then follows this clause of the judgment: “It is further adjudged and decreed, that all of the parties to this action be given and allowed a period of sixty days from the entry of this judgment within which to specifically perform both said contracts as so reformed, and should either of the parties hereto refuse, fail or neglect to perform said contracts in accordance with this judgment, either parties, on eight days’ notice to the others, may bring the matter before the court for further proceedings herein to enforce the order and judgment of this court herein, and this court retains jurisdiction of this action, the subject matter thereof and all the parties hereto for the purpose of enforcing the order and decree of the court herein.”

In April, 1923, plaintiff obtained an order to show cause against Edgington why judgment should not be forthwith docketed against [241]*241him for $36,661.82 and accrued interest, in accordance with the previous decree, and why the court should not grant such further relief to plaintiff in the premises for the enforcement of such decree as the court might be advised. The order to show cause was directed to be served upon one of the attorneys who represented Edgington at the trial, and it was so served. At the hearing the attorney was present, but took no part. The court found that plaintiff and defendants Even had in all things complied with the judgment and decree of July, 1922, but that defendant Edgington had not complied with any part thereof, and directed that a judgment be forthwith entered and docketed against him and in favor of plaintiff for $39,961, and that all his interest in said farm be sold at public vendue by the sheriff of Nobles county in the same manner as a sale upon execution, and that the proceeds of such sale be applied on the judgment so entered, and execution issue for any deficiency. A supplemental judgment in accordance with this order was entered May 2, 1923. From this judgment Edgington appeals. The record discloses that pursuant to this judgment the sheriff sold Edgington’s interest for $16,500, and after deducting expenses paid the balance of $16,441.85 to plaintiff and that the sale was duly confirmed.

The appellant contends that jurisdiction of the person of defendant was not obtained by the service of the notice upon the attorney who represented him in the trial. The genera] rule is that the .authority of the defeated party’s attorney to represent him ends with the entry of judgment. Berthold v. Fox, 21 Minn. 51. However, while under section 4950, G. S. 1913, the authority of the attorney of the prevailing party continues for only two years after entry of judgment for the purposes of collection and satisfaction, yet in Phelps v. Heaton, 79 Minn. 476, 82 N. W. 990, it was held that notice to vacate a judgment in favor of a nonresident plaintiff may be served on his attorney of record, although more than two years have elapsed since the entry thereof. Judge Sanborn in Brown v. Arnold, 67 C. C. A. 125, 131 Fed. 723, states that there are many exceptions to the rule that the authority of the attorney to repre[242]*242sent his client ceases with the entry of judgment. Freeman, Judgments, § 142, says that in proceedings after final judgment parties are entitled to notice, “but such notice may generally be given to their attorneys, who, notwithstanding the entry of judgment, are regarded as still representing them for the purposes of receiving notices of motions.”

In the case at bar the judgment itself reserves jurisdiction of the parties for the purpose of enforcing it. Hence we are of the opinion that service of notice on the nonresident defendant properly was made upon the attorney representing him at the trial. And even if the reservation of jurisdiction of the parties was erroneous, which we do not admit, it is now valid, not having been corrected by timely appeal. It can hardly be claimed void as beyond the power of the court to make it. It must also be conceded, as we think counsel for appellant do, that, for the purpose of merely enforcing the original decree, retention of jurisdiction of the parties was proper. 21 C. J. 692, § 865, and cases there cited. The different modes for the exercise of this retained jurisdiction are referred to in Fry, Specific Performance, §§ 1170-1181. These have also been considered by this court in Abbott v. Moldestad, 74 Minn. 293, 77 N. W. 227, 73 Am. St. 348; London & N. W. Am. Mort. Co. v. McMillan, 78 Minn. 53, 80 N. W. 841; Freeman v. Paulson, 107 Minn. 64, 119 N. W. 651, 131 Am. St. 438; D. W. Kerr Co. v. Nygren, 114 Minn. 268, 130 N. W. 1112, Ann. Cas. 1912 C, 538. We hold that the court had jurisdiction of the defendant Edgington to enforce the original decree as to him after the other parties to the action had performed. The original decree presupposes that there be first specific performance as between plaintiff and defendants Even.

•The contention of appellant is also that the supplemental decree is wrong and not authorized by the main decree first rendered. There seems to be ground for complaint in this respect.

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Cite This Page — Counsel Stack

Bluebook (online)
199 N.W. 751, 160 Minn. 238, 1924 Minn. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-even-minn-1924.