Alderson v. Marshall

Decision Date10 January 1888
PartiesALDERSON v. MARSHALL.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Gallatin county; J. H. McLEARY, Judge.

John W. Marshall, plaintiff, sued W. W. Alderson, defendant, in ejectment. Judgment was rendered for plaintiff, and defendant appeals.

Luce & Armstrong, for appellant.

Savage & Elder, for respondent.

BACH, J.

This is an action of ejectment. The complaint contains the allegations usual in such cases. The answer denies the title of the plaintiff, and the unlawful withholding, and sets up as a further defense the statute of limitations. At the trial of the case, the plaintiff proved the title of one Mathew Muldoon to the premises, and then introduced in evidence, without objection, the judgment-roll in an action in which the plaintiff herein was plaintiff and the said Muldoon was the defendant, which action was brought for the purpose of foreclosing a mortgage executed by Muldoon to the plaintiff, and including the premises in question. The decree in that case was in favor of the plaintiff, and was in the form most generally used in cases of foreclosure. The plaintiff in this case then offered in evidence the deed of the sheriff of Gallatin county, conveying to him the premises in question by virtue of the decree. Evidence was then introduced for the purpose of showing the unlawful possession of the defendant, and the plaintiff rested.

The defendant moved for a nonsuit, on the following grounds: First. The evidence does not support the allegations of plaintiff's complaint. Second. The evidence does not show plaintiff to be entitled to recover in this action. Third. No evidence has been offered by plaintiff to prove any indebtedness on which to base the judgment in favor of plaintiff against said Mathew Muldoon, nor to uphold said sheriff's deed. Fourth. The evidence does not make out a cause of action.

Before passing upon the motion, the judge below allowed plaintiff to introduce in evidence the order of sale, and the return of the sheriff attending the sale. This action of the court is one of the assigned errors. It was in the discretion of the court below to allow the plaintiff to reopen his case, and we think that the court exercised its discretion wisely. After this evidence had been introduced, the plaintiff renewed his motion for nonsuit, which motion was denied.

The action in which Alderson was plaintiff and Muldoon defendant was commenced on the twenty-eighth day of April, A. D. 1883, and service of summons was had by publication. The law which controls the publication of summons in that case is the law contained in Sess. Laws 1883, and, as far as this case is concerned, the law reads as follows: “When a person on whom service of summons is to be made cannot, after due diligence, be found within the territory, and an affidavit stating these facts is filed with the clerk of the court in which the action was brought, such affidavit also stating that a cause of action exists against the defendant in respect to whom service of summons is to be made, and that he is a necessary or proper party to the action; the judge of the court, or the clerk of the court, in the absence of the judge, shall cause service of summons to be made by publication thereof.”

The affidavit upon which the order for the publication of summons was granted reads as follows:

W. W. Alderson vs. Mathew Muldoon.

“I, J. L. Staats, attorney for the plaintiff in the above-entitled cause, being first duly sworn, depose and say that I have exercised due diligence in procuring actual service upon said defendant, but have not been able to discover his whereabouts in the territory; that a good and valid cause of action exists against said defendant, in respect to whom the service of summons is to be made; and that defendant is a necessary and proper party to the action, to the determination of said cause. J. L. STAATS.”

The affidavit is verified.

It would seem that the allegation, “the defendant cannot be found after due diligence,” is insufficient; that it is a conclusion of law, based upon statements showing what search and what diligence have been made in the attempt to discover the defendant. The facts upon which is predicated the conclusion of “due diligence” must appear by affidavit; otherwise the affidavit is insufficient, and the officer granting the order does so without authority of law; and the order and all proceedings based thereon are void. Braly v. Seaman, 30 Cal. 611;Jordan v. Giblin, 12 Cal. 100.

The plaintiff claims that inasmuch as the defendant did not object to the introduction of the judgment roll, the defects cannot be considered; but we do not look upon the question in that light. The evidence introduced by itself proves only the defect in plaintiff's title, and it would be difficult to understand why the defendant should object to the plaintiff proving himself out of court. When the plaintiff rested his case, it would seem from the authorities above that he could not recover, because the judgment upon which his title is founded is absolutely void. If that was all there was in the case, we are of the opinion that the judgment would have to be reversed: but instead of resting there and depending upon the merits of his motion for nonsuit, the defendant went into his defense, and the plaintiff gave testimony in rebuttal. The authorities are uniform upon this proposition, that, although the motion for a nonsuit may have been improperly denied, still, if the evidence subsequently admitted in the case cures the defect, the error will be considered to have been waived, and a new trial will not be granted. Plank-Road Co. v. Thatcher, 11 N. Y. 113;Tiffany v. St. John, 65 N. Y. 317;Perkins v....

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