Bardwell v. Anderson

• Decision Date: 17 July 1890
• Citation: 44 Minn. 97,46 N.W. 315
• Parties: BARDWELL ET AL. v ANDERSON ET AL.
• Court: Minnesota Supreme Court

44 Minn. 97

46 N.W. 315

BARDWELL ET AL.vANDERSON ET AL.

Supreme Court of Minnesota.

July 17, 1890.

(Syllabus by the Court.)

1. In actions in personam of a strictly judicial character, and proceeding according to the course of the common law, service of the summons, by publication in a newspaper, upon resident defendants, who are personally within the state, and can be found therein, is not “due process of law.”

2. Therefore Gen. St. 1878, c. 81, § 28, assuming to provide for such service in actions to foreclose mortgages, is unconstitutional and void.

Appeal from district court, Hennepin county; SMITH, Judge.

Daniel Fish, for appellants.

Harlan P. Roberts, for respondents.

MITCHELL, J.

The questions raised by this appeal involve the construction and validity of the provisions of section 28, tit. 2, c. 81, Gen. St. 1878, relating to the service of the summons in actions for the foreclosure of real-estate mortgages, which by section 8, c. 90, of the same statutes, are made also applicable to actions to enforce mechanics' liens. This action was one to enforce a mechanic's lien; the complaintalleging that the defendant Collins claimed a lien or interest in the property on which the lien was sought to be enforced, but that it was subsequent and inferior to plaintiffs' lien, and that no personal claim was made against him. It nowhere appears whether Collins was or was not a resident of the state. It must therefore be presumed that he was a resident, and could have been found within the jurisdiction of the court. The only service of the summons upon him was by publication, and no affidavit for publication was ever filed with the clerk of the court, as provided by section 64, c. 66, Id. Judgment was entered against him on default, which he moved to have set aside on the ground that the court had never acquired jurisdiction of his person, because there had been no valid service of the summons. From an order denying this motion, he appeals.

The legislation in this state regarding substituted service by publication of the summons in civil actions has been somewhat incongruous and complicated, the history of which in detail might be interesting, but not profitable for present purposes. Suffice it to say that, from the earliest days of the territory down at least to 1866, such substituted service in actions strictly judicial in their nature, and proceeding according to the course of the common law, was only allowed where the defendant could not be found within the state; personal service being, in accordance with the uniform rule and practice from time immemorial, required in all cases where the defendant could be found, and service made upon him, within the jurisdiction of the court. And prior to 1869 an order of court granted upon an affidavit showing a state of facts authorizing service by publication was necessary; but by chapter 73, Laws 1869, publication was permitted merely upon filing the affidavit with the clerk of the court, an order of the court being no longer required. The filing of the affidavit is, however, a condition precedent to a valid service by publication upon a non-resident defendant. Barber v. Morris, 37 Minn. 194,33 N. W. Rep. 559. The first appearance of anything like section 28, tit. 2, c. 81, Gen. St. 1878, was in the Revision of 1866, where it will be found as section 25 of the same title and chapter. This was amended by chapter 74, Laws 1868, so as to read as it is now, except that the word “personal,” qualifying the word “judgment,” was omitted. This rendered it meaningless and inoperative unless, by a very liberal and hardly allowable construction, the word “personal” could be read into it. It remained in this form until March 7, 1878, when, by chapter 6 of the laws of that year, the word “personal” was restored, so that it read as now found in Gen. St. 1878. In the mean time, title 1 of chapter 81, to which it refers, had been repealed by chapter 121, Laws 1877, and foreclosure by advertisement entirely abolished. This mode of foreclosure was, however, restored by an act (chapter 53, Laws 1878) also passed March 7, but to take effect April 1, 1878, and which is now title 1, c. 81, Gen. St. 1878. It is also worthy of note that on February 28, 1878, (only eight days before the last amendment of section 25, tit. 2, c. 81, Gen. St. 1866,) the legislature added a sixth subdivision to section 49, c. 66, Gen. St. 1866, enumerating the cases where a summons might be served by publication on non-resident defendants, which is as follows: “When the action is to foreclose a mortgage, or to enforce a lien of any kind, on real estate in the county where the action is brought.” Laws 1878, c. 9. So much for the history of the legislation bearing upon the questions before us.

The provisions of Gen. St. 1878, c. 81, tit. 2, with which we have now to do are as follows: “Sec. 27. Actions for the foreclosure of mortgages shall be governed by the same rules and provisions of statute as civil actions, except as herein otherwise expressly prescribed. Sec. 28. Service by publication of the summons in the manner provided in section 5 of title one of this chapter, for publication of the notice of sale therein specified, may be made upon all parties to the action against whom no personal judgment is sought; and in such case judgment may be taken, without giving security as to those parties, at the expiration of twenty days after the completion of the period of publication. But such parties, or any of them, shall be permitted to appear and defend, upon good cause shown, at any time before final decree.”

The questions presented are two: First. Was section 28 intended to provide that, in actions to foreclose mortgages, the summons might be served by publication on resident defendants who could be found in the state? And, as a subsidiary question, whether the provisions of section 64, c. 66, Gen. St. 1878, providing for the filing of an affidavit with the clerk of the court, are applicable to such cases. Second, if the statute thus provides for service by publication on resident defendants, does such service constitute “due process of law?” We infer from the memorandum of the district judge that the subsidiary branch of the first question was the main, if not the only, point urged before him; and the second question is so faintly raised by the defendant in this court that we would hardly deem it incumbent on us to consider it, if the interests of no one but himself would be affected by an erroneous assumption of the validity of such a statute.

We think it clear that the expression “personal judgment” is here used in the sense of a money judgment for the mortgage debt; and, while the legislation on the subject, as we have narrated it, has been rather incongruous in some respects, and while we have been unable to discover where the commissioners who prepared the Revision of 1866 found any precedent for so radical a departure from the uniform course of judicial procedure from time immemorial, and while we are unable to conceive what considerations induced them to adopt it, yet its plain and unequivocal language compels us to the conclusion that this statute was intended to provide that service of the summons by publication might be made on all defendants in foreclosure suits whom it was not sought to hold personally liable for the mortgage debt, although residents of the state, and personal service might be made on them within...