Cunningham v. Water-Power Sandstone Company
| Decision Date | 22 November 1898 |
| Docket Number | 11,323 - (112) |
| Citation | 77 N.W. 137,74 Minn. 282 |
| Parties | GEORGE H. CUNNINGHAM v. WATER-POWER SANDSTONE COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Pine county, Crosby, J., denying the petition of defendant to set aside a judgment and execution sale, and to require plaintiff to accept defendant's tender of the amount of the judgment and costs. Affirmed.
Service of Summons -- Affidavit -- District Court Rule 22.
It is not necessary that the affidavit of service of a summons by a private person should state that the person upon whom the service was made was to affiant known to be the person upon whom service was required to be made. Rule 22 of the district court construed.
Finding Sustained by Evidence.
The finding of the trial court, to the effect that the affidavit of no appearance or answer by the defendant was made and filed before the entry of judgment herein, is sustained by the evidence.
Sale on Execution -- No Error in Refusing to Set Aside.
The trial court did not err in denying the defendant's motion to set aside the sale of its realty on execution, when it had personal property sufficient to satisfy the execution; it not appearing that the plaintiff or the sheriff knew, or ought to have known, of the existence of such personal property.
S. F White, for appellant.
Robert C. Saunders, for respondent.
This is an appeal by the defendant from an order denying its motion to set aside the judgment herein and a sale of its real estate by virtue of an execution issued thereon.
1. The summons and complaint were served on the defendant by a private person, and his affidavit of such service is to the effect that at the city of Duluth, on December 14, 1896, he served the summons and complaint on the Water-Power Sandstone Company, a corporation, and the defendant in this action, by handing to and leaving with B. G. Segog, an officer of the defendant, to wit, the vice president, a true and correct copy thereof. On January 6, 1897, the clerk entered a judgment against the defendant by default in favor of the plaintiff for the sum of $107.13, in which it was recited that the summons had been duly served on the defendant, and proof thereof duly filed, and that no answer to the complaint had been served or filed as required by law and the summons.
The defendant claims that the clerk had no authority to enter the judgment, because there was no proof of service of the summons, in that the affidavit did not comply with rule 22 of the district court by stating that "the person upon whom the service was made was to the affiant well known to be the person * * * upon whom such service was directed to be made." A reading of rule 21 shows that rule 22 has no application to proof of the service of a summons, but only to the service of such orders or notices as the court directs to be made on particular persons. Dunnell, Trial Book, 406. If the rule purported to apply to the proof of the service of a summons, it would be invalid to that extent, because inconsistent with the statute. G.S. 1894, § 5208; Young v. Young, 18 Minn. 72 (90). When the case cited arose, rule 30 of the then existing rules of the district court was in force, which expressly provided for the manner of making proof of the service of the summons. See Rules of Practice, 6 Minn. 19. When the district court rules were revised, in 1875, rule 30 was omitted, presumably because it had been held invalid. In the revision of the rules, in 1893, the present rule as to proof of service of orders and notices was adopted.
It is further objected to the proof of service in this case that the affidavit does not state that the person upon whom service was made was the vice president of the defendant. The affidavit stated positively, in legal effect, that service was made upon an officer of the defendant, namely, the vice president. No claim was made by the defendant in his moving papers that the summons was not so served. The proof was legally sufficient to authorize the entry of the judgment by the clerk.
It is further claimed that the affidavit of no appearance...
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