Herrick v. Morrill

Decision Date21 July 1887
Citation33 N.W. 849,37 Minn. 250
PartiesNathan Herrick v. Ashley C. Morrill
CourtMinnesota Supreme Court

Appeal by plaintiff from a judgment of the district court for Morrison county, where the action was tried before Collins J., without a jury.

Edward Savage, for appellant.

Chas D. Kerr, for respondent, upon the question of the validity of a printed signature to a summons, cited Ames v Schurmeier, 9 Minn. 206, (221;) Farmers', etc Trust Co. v. Dickson, 9 Abb. Pr. 61; Hamilton v. State, 103 Ind. 96; Morey v. Morey, 27 Minn. 265; Holmes v. Campbell, 12 Minn. 141, (221;) Feller v. Clark, 36 Minn. 338, (31 N.W. 175;) Settlemier v. Sullivan, 97 U.S. 444; Falkner v. Guild, 10 Wis. 563; Boker v. Chapline, 12 Iowa 204; Wells, Jurisdiction, 27-41; Turrell v. Warren, 25 Minn. 9.

OPINION

Mitchell, J. [1]

This was an action to determine adverse claims to real estate. Both parties claim through the Little Falls Manufacturing Company as a common source of title. Plaintiff claims title (1) to certain tracts under an execution sale made July 28, 1869, on two judgments known as the "Herrick" judgments; (2) to other tracts under an execution sale made April 26, 1871, on the junior Herrick judgment, and two others known as the "Hidden" judgments; (3) to still other tracts under an execution sale made June 11, 1874, on the junior Herrick judgment; (4) to still further tracts on an execution sale made June 25, 1875, on this same judgment. The defendant claims title under a deed from the Little Falls Manufacturing Company to Arthur Eustis, executed July 11, 1882, and certain mesne conveyances from Eustis to defendant. The court below found against plaintiff upon all four of these execution sales. The grounds upon which the court held invalid the title under the execution sale of July, 1869, were (1) that the Herrick judgments (which were rendered on default) were void because the summons in the actions were not subscribed by the plaintiff or his attorney; (2) that the certificate of sale did not describe the real estate sold with sufficient certainty; (3) that the certificate of sale was not executed or acknowledged by the sheriff of Morrison county. We shall consider these three in their order.

The summons in the two Herrick actions had the printed but not the written names of the plaintiff's attorneys affixed, and the court below, for that reason, held the judgments void upon the supposed authority of Ames v. Schurmeier, 9 Minn. 206, (221.) Even if the decision in that case is to be adhered to, it does not follow that the judgments are void, or that they can be thus collaterally attacked by the parties to those actions or their privies. Being domestic judgments of a court of common-law jurisdiction from which an appeal would lie, they would be valid as between the parties until reversed, notwithstanding this defect in the summons. Freem. Judgm. § 126; Hendrick v. Whittemore, 105 Mass. 23. The summons would at most be merely voidable, and the defect could only be taken advantage of directly in the actions themselves, and could not be made the ground of a collateral attack on the judgments by the parties, or those in privity with them. We have no hesitation, however, in saying that, in our opinion, the decision in Ames v. Schurmeier was erroneous, and should not be followed. In fact, it was long since virtually overruled by Hotchkiss v. Cutting, 14 Minn. 408, (537.) In the first case this court held that the summons must have the name of the plaintiff or his attorney attached in his own proper handwriting. In the latter case it was held that a written signature purporting to be that of the plaintiff in the action, but made by his agent in his presence and by his express direction, was sufficient. This does away with the necessity of a signature in the proper handwriting of the party or his attorney, and it logically follows that there need be no written signature at all; that any signature, whether written, printed, or lithographed, which the party issuing the summons may adopt as his own, will be sufficient. Any of these will accomplish the desired purpose, and give the defendant all the necessary information. There is no middle ground. The statute either requires the signature to be the proper handwriting of the plaintiff or his attorney, or it may be complied with by attaching any of the other forms of subscription suggested. The decision in Ames v. Schurmeier seems to have been made upon the erroneous assumption that "subscribed" meant a "written signature," and that the statute defining the meaning of the words "written signature" applied to the construction of the statute requiring the summons to be "subscribed." Barnard v. Heydrick, 49 Barb. 62; Mutual Life Ins. Co. v. Ross, 10 Abb. Pr. 260, (note;) Mezchen v. More, 54 Wis. 214, (11 N.W. 534.)

This brings us to the question of the sufficiency of the description of the property in the certificate of sale. The property in controversy consisted of certain lots in certain blocks in the town of Little Falls, in the county of Morrison, according to a map or plat thereof recorded in the office of the register of deeds. The notice of sale, which was published in the Sauk Rapids Sentinel, described the property levied on and to be sold as situated in Morrison county, and as being certain specified lots in certain designated blocks "in the town of Little Falls." There would seem to be no question but that this description was sufficient, and gave full notice to all parties of what property was to be sold. The certificate of sale, after reciting the levy, and the publication of notice in the Sauk Rapids Sentinel, described the property sold the same as the notice of sale, except that it uses the word "township" instead of "town," describing it as lots and blocks "in the township of Little Falls." The whole trouble, if any, arises from the use of the word "township" instead of "town.' The word "town" often means "township," but "township" never means "town" in the sense of a platted village or town-site. But it clearly appears that it was property in the town or village of Little Falls that was advertised for sale; and hence, as already remarked, all parties had notice of what property was to be sold. The court will take judicial notice of the fact that a township, whether used in the sense of a municipal division of a county, or of a township according to government survey, has no subdivisions known as blocks. That term is applied only to the subdivisions of a platted town, village, or city. In view of these facts, we think it apparent that the word "township" is a mere clerical error, being inadvertently used for the word "town." If the word "township" be rejected entirely as surplusage, enough remains to constitute a good description of the property as being in the town or village of Little Falls. The difference between the description in this certificate and that contained in the certificate considered in Herrick v. Ammerman, 32 Minn. 544, (21 N.W. 836,) will be apparent on inspection.

We do not fully understand the point to the objection that the certificate was not acknowledged or executed by the sheriff of Morrison county. It was executed and acknowledged by the deputy-sheriff who made the levy and the sale. As we understand the law, the officer who makes the sale is the proper person to...

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