501 DeMers, Inc. v. Fink

Decision Date16 February 1967
Docket NumberNo. 8386,8386
Citation148 N.W.2d 820
CourtNorth Dakota Supreme Court
Parties501 DeMERS, INC., Plaintiff and Respondent, v. Victor L. FINK and William W. Fink, doing business as V & W Parking Stations, Defendants and Appellants. Civ.

Syllabus by the Court

1. Due process requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of suit does not offend traditional notions of fair play and substantial justice. It is sufficient that the appellant has established such contacts with the State that the particular form of substituted service adopted here gives reasonable assurance that the notice will be actual.

2. When a cause of action arose out of the operation of a parking lot business conducted by nonresident partners in one location and service of process was made on the managing agent of a parking lot business in another location in which two partners of the first location were two of the three partners in the second location, such service, together with service on the defendants in the State of their residence, complies with Rule 4(e)(3), N.D.R.Civ.P., and establishes jurisdiction in personam of the nonresident defendants.

3. An affidavit of prejudice directed to the judge of the district court and not filed before the commencement of the term at which the case is to be tried is of no effect and does not deprive the judge of the right or power to try the action in which such affidavit is filed during term time.

4. An agreement to repair even before commencement of the term is not to be construed to be mutual with the covenant to pay rent.

5. On a trial de novo in the supreme court, the findings of the trial court are entitled to appreciable weight, especially when based on testimony of witnesses who appeared in person before the court.

6. Where the tenant interposes a counterclaim, setoff, or recoupment in an action for rent the burden rests on the tenant to sustain it.

7. Where lost profits are properly recoverable as the measure of damages for breach of covenant to repair, the amount must not be left to speculation or conjecture, and the testimony must show that the loss is fairly attributable to the wrong complained of.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for plaintiff and respondent.

Letnes, Murray & Marshall, Grand Forks, for defendants and appellants.

PAULSON, Judge.

This is an action brought by the plaintiff against the defendants for the recovery of rentals for a parking lot in the city of Grand Forks, North Dakota. The parking lot was leased by the plaintiff corporation to the defendants. A written lease was entered into between the parties to this action and the term of such lease commenced January 1, 1963. The defendants entered into possession of said premises on December 5, 1962, and operated the parking lot until September 24, 1963, when a notice of cancellation was served upon then and possession was relinquished to the plaintiff. The defendants, that is, Victor L. Fink and William W. Fink, were doing business as V & W Parking Stations in the city of Grand Forks and were not residents of the State of North Dakota and, accordingly, personal service of the summons and complaint could not be made upon them in this State. The parking lot known as the V & W Parking Stations was no longer being operated by the defendants at the time suit was commenced against them. However, the defendants did, with another partner, operate a parking lot or lots in Minot, North Dakota, and also one in Fargo, North Dakota. The service of the summons and complaint was made upon the defendants in the State of North Dakota by service on their manager, one Roger LaFontaine, who was the person in charge of the parking lot in which the defendants were part owners at the time of the service of the summons and complaint. This service was made by the sheriff of Ward County, North Dakota; that thereafter substituted service was made upon the defendant, William W. Fink, in the city of St. Paul, Minnesota, by the sheriff of Ramsey County, Minnesota, and service upon the defendant, Victor L. Fink, was made by registered mail by mailing a copy of the summons and complaint to the said Victor L. Fink at his residence in the city of Minneapolis, Minnesota. An affidavit of compliance was executed by one of the attorneys for the plaintiff, pursuant to the North Dakota Rules of Civil Procedure.

The defendants thereupon moved to dismiss the complaint of the plaintiff upon the ground that the complaint failed to state a cause of action and on the further ground that the action should be dismissed or the service quashed by virtue of the fact that the defendants were residents of the State of Minnesota and not residents of the State of North Dakota, and were not properly served under the North Dakota Rules of Civil Procedure, and that the court therefore lacked jurisdiction In personam. The defendants also interposed an answer and a counterclaim to the complaint of the plaintiff in which the defendants claimed certain damages for noncompliance by the plaintiff with the terms and provisions of the written lease. The defendants, through their attorneys, later filed an affidavit of prejudice against the trial judge, which affidavit was not honored. The judge denied the motion to dismiss said action for lack of jurisdiction.

The case came on for trial before the Honorable Harold Hager, one of the judges of the First Judicial District.

The defendants, at the commencement of the trial, further objected to the jurisdiction of the court and also objected to the failure of the court to honor the affidavit of prejudice. After the trial by the court, the judge ordered that a judgment be entered in favor of the plaintiff and against the defendants in the sum of $4,995.68, and, in addition, dismissed the counterclaim of the defendants. The defendants thereupon moved the court to amend and supplement the findings of fact, conclusions of law, and order for judgment, or for a new trial. The court denied said motion and the defendants have appealed from the order denying a new trial and demanded a trial de novo.

The first issue is whether there was proper service of the summons and complaint upon the defendants, pursuant to Rule 4(e)(3), North Dakota Rules of Civil Procedure. The pertinent sections of said rule read as follows:

'When any natural person or persons not residing in this state shall engage in business in this state, In any action against such person or persons arising out of such business, by delivering a copy of the summons to the person who at the time of service Is in charge of any business in which the defendant or defendants are engaged within this state, if there is such, and such service shall be of the same force and effect as if served personally within the state upon the said defendant or defendants so engaging in business in this state provided that a copy of such summons together with a notice of such service upon such persons in charge of such business pursuant to the provisions of this paragraph shall be sent forthwith to such nonresident person or persons by registered or certified return receipt requested mail. * * *' (Emphasis added.)

The plaintiff served the summons and complaint upon Roger LaFontaine, the manager of the parking lot in the city of Minot, North Dakota, who was at the time of service the person in charge of the parking lot in the city of Minot, and the defendants concede that on the date of service of said summons and complaint on Roger LaFontaine, they were engaged in business in Minot, North Dakota, in the parking lot business, but under the name of V & W Associates; and the defendants further contend that they were not at the time of the said service of said summons and complaint engaged in the business out of which this action arose, namely, V & W Parking Stations at Grand Forks, North Dakota. A careful consideration of Rule 4(e)(3), North Dakota Rules of Civil Procedure, shows that the significant words of the foregoing rule ar the following:

'* * * By delivering a copy of the summons to the person who at the time of service is in charge of any business in which the defendant or defendants are engaged within this state, * * *' (Emphasis added.)

The defendants have admitted that they were partners in the business and doing business as V & W Parking Stations and, in addition, have admitted that they were engaged at all times mentioned in a similar business at Minot, North Dakota, which was known as V & W Associates, but which partnership included not only these two defendants, but an additional partner as well. Likewise, in the answers to certain interrogatories which were served upon the defendants and answered by them, the defendants did affirm and admit that they had done business as V & W Parking Stations at Grand Forks, North Dakota, and, in addition thereto, were operating a parking lot business in the city of Minot, North Dakota, as V & W Associates; that said defendants further answered to Interrogatory No. 12 that they had an employee by the name of Rober LaFontaine and that he was an employee of V & W Associates, and, further, that he was the general manager for V & W Associates. There is no question that the defendants were operating a business in the State of North Dakota at the time of the service of the summons and complaint.

The defendants further contend that in order for the court to acquire jurisdiction over them under Rule 4(e)(3), North Dakota Rules of Civil Procedure, the action must arise out of the operation of such business and, further, that the defendants were not, on June 15, 1964, engaged in the business out of which this action arose. Rule 4(e)(3) states that the service may be made--

'* * * by delivering a copy of the summons to the person who at the time of service is in charge Of any business in...

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10 cases
  • First Interstate Bank of Fargo, N.A. v. Larson
    • United States
    • North Dakota Supreme Court
    • September 17, 1991
    ...NDCC 45-05-05(1). For service of process, a partnership is not a legal entity, separate and distinct from its members. 501 DeMers, Inc. v. Fink, 148 N.W.2d 820 (N.D.1967). Although any partner may enter into a separate obligation to perform a partnership debt, partners are jointly, not seve......
  • Robertson Lumber Co. v. Progressive Contractors, Inc.
    • United States
    • North Dakota Supreme Court
    • July 3, 1968
    ...situation arisen in North Dakota, we would not have been faced with the same problem under our long-arm rule. See 501 DeMers, Inc. v. Fink (N.D.), 148 N.W.2d 820. We think a letter presented at the hearings before the House Committee on Banking and Currency, 84th Congress, Second Session, 1......
  • Graven v. Backus
    • United States
    • North Dakota Supreme Court
    • December 10, 1968
    ...upon the defendant, as the claimant, the burden of proof to establish his right to the affirmative relief which he seeks. 501 DeMers Inc. v. Fink (N.D.), 148 N.W.2d 820; Midland Oil & Royalty Co. v. Schuler (N.D.), 126 N.W.2d 149; 27 Am.Jur.2d Equity, Sec. 214, p. In the light of our analys......
  • Wheat v. Patterson
    • United States
    • North Dakota Supreme Court
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    ...who appeared in person before the trial court. Grabau v. Hartford Accident & Indemnity Co., N.D., 149 N.W.2d 361; 501 DeMers, Inc. v. Fink, N.D., 148 N.W.2d 820; Gress v. Gress, N.D., 148 N.W.2d 166. Although the findings of the trial court are entitled to appreciable weight, this court, on......
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