Bartell v. Morken

Decision Date01 July 1954
Docket NumberNo. 7412,7412
Citation46 A.L.R.2d 1353,65 N.W.2d 270
PartiesBARTELL v. MORKEN et al.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. The district court is a court of general jurisdiction and it is presumed that its judgments are regularly and validly entered. However, if from the record upon which the judgment is based it affirmatively appears that the court had no jurisdiction of the controversy or of the defendant against whom the judgment is rendered, it is void and may be collaterally attacked or impeached.

2. Where service is obtained by publication, statutory provisions for securing such service must be strictly complied with.

3. Upon the death of an intestate, his real estate, in North Dakota, passes immediately to his heirs.

4. Where in an action to determine adverse claims a party named as a defendant who died prior to the commencement of the action is the record title owner to the real estate, the appearance of the name of such defendant on the summons and complaint and in the affidavit for publication of summons is a nullity. It adds or detracts nothing with respect to the validity of service by publication and any defects in the procedure attempting to procure service upon such defendant which are applicable exclusively to him have no effect on the validity of the service upon other persons as unknown defendants.

5. Section 32-1707, NDRC 1943 provides the grounds upon which service by publication may be obtained upon unknown persons defendant. These grounds are exclusive of the four grounds set forth in Section 28-0620, NDRC 1943 for obtaining service by publication upon known defendants.

6. An affidavit for publication of summons as to unknown defendants sworn to and filed by the attorney for plaintiff must be filed within a reasonable time after it is sworn to. Where the attorney has his office in a county different from the one in which the action is brought, an interval of three days between the execution and filing of the affidavit is reasonable under the circumstances and will not invalidate it as a basis for securing service by publication.

Q. R. Schulte, Stanley, for plaintiff and appellant.

Earl Walter, Bowbells, for defendant and respondent, Selmer Morken.

Swendseid & Bekken, Stanley, and Cox, Cox, Pearce & Engebretson, Bismarck, for defendant and respondent, Stanolind Oil & Gas Co.

MORRIS, Chief Justice.

The plaintiff, Bertha L. Bartell, brings this action in statutory form, Section 32-1704, NDRC 1943, to determine adverse claims to and recover the value of the use and occupation of Lots 3, 4, 5, and 6 of Section 6, Township 158, Range 91 in Mountrail County.

The defendant, Selmer Morken, by separate amended answer, denies the allegations of the complaint and with more particularity than we need set forth here alleges that Mountrail County obtained a tax deed to the premises involved on May 21, 1938, which was recorded in the office of the register of deeds of that county on July 25, 1938, and that on March 4, 1946, the county deeded the land to the defendant, Selmer Morken, which deed was recorded on March 6, 1946.

Morken further alleges that on August 8, 1951, in an action in which he was plaintiff and Niels C. Larsen, his unknown heirs or devisees if deceased, and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the complaint, were defendants, a judgment was entered decreeing Selmer Morken to be the owner in fee simple and absolute of the premises herein involved and that a certified copy of that judgment was recorded in the office of the register of deeds of Mountrail County on August 8, 1951.

As a further defense Selmer Morken alleges that he and his grantor, Mountrail County, have been in open, adverse, and undisputed possession of the land since May 21, 1938, and have paid all taxes legally assessed and levied against it and that the plaintiff is now barred from asserting her claim by the provisions of Section 47-0603, NDRC 1943, as amended by Chapter 276, SLND 1951, and by the provisions of our residuary statute of limitations, Section 28-0122, NDRC 1943.

The defendant, Stanolind Oil and Gas Company, a corporation, by its amended separate answer, sets forth by way of counterclaim that it is the assignee of the lessee of an oil and gas lease executed by Selmer Morken, as lessor, to Jeff Hawks, as lessee, on May 23, 1949, which is now in full force and effect. This defendant also sets forth substantially the same matters as does the answer of Selmer Morken with respect to the tax deed of Mountrail County, the deed to Selmer Morken, the previous judgment determining him to be the owner of the fee simple title to the land, adverse possession, and statutes of limitation. Both defendants pray that their titles and interests in the land be quieted as against the claims of the plaintiff. The plaintiff, by appropriate reply, has denied the new matter contained in the answer and counterclaim of the defendant Stanolind Oil and Gas Company.

Upon order of the trial court judgment was entered decreeing that Selmer Morken is the owner of and entitled to immediate possession of the property involved and that the Stanolind Oil and Gas Company has a valid and existing oil and gas lease for the purpose of exploring and producing oil and gas upon the premises. The plaintiff appeals to this court and demands a trial de novo.

On December 31, 1929, Niels C. Larsen of Viborg, South Dakota, became the owner of the premises involved in this action by virtue of a warranty deed executed by the then record owner of the land. On December 8, 1931, the property was sold to Mountrail County at tax sale for nonpayment of taxes for the year 1930. On May 21, 1938, a tax deed was issued to Mountrail County. This tax deed was void for various reasons, among them being that the notice of expiration of the period of redemption stated the amount of taxes due in one lump sum and included therein taxes which had been delinquent for less than three years prior to the service of the notice. Grandin v. Gardiner, N.D., 63 N.W.2d 128. Mountrail County nevertheless went into possession and leased the land to the defendant Selmer Morken. On March 4, 1946, the county executed and delivered a tax deed to Morken, who continued in possession. On May 4, 1951, Selmer Morken instituted an action to determine adverse claims to the property against 'Niels C. Larsen, his unknown heirs or devisees if deceased; and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the Complaint herein, Defendants.' On August 8, 1951, judgment was entered in that action in the district court of Mountrail County determining

'That the Plaintiff, Selmer Morken, is owner in fee simple of the premises hereinafter described, and his right and interest in said premises is hereby declared and established as owner in fee simple and absolute.

'That the interests of all Defendants, hereinabove described, are hereby quieted, and they are forever debarred from any and all claims of right or title to the said premises, or lien or encumbrance upon said premises, which they had precedent to the beginning of the action; that the same applies to anyone claiming title through any of the said Defendants, or any person unknown claiming estate or interest in or lien or encumbrance upon the property, before the commencement of this action, which was as of the 4th of May, 1951.'

The present action of Bertha L. Bartell to determine adverse claims to the same land is a collateral attack upon the former judgment. 31 Am.Jur., Judgments, Section 616; 44 Am.Jur., Quieting Title, Section 97; Johnson v. Ranum, 62 N.D. 607, 244 N.W. 642; Kalb v. German Savings and Loan Society, 25 Wash. 349, 65 P. 559, 87 Am.St.Rep. 757.

The district court is a court of general jurisdiction and it is presumed that its judgments are regularly and validly entered. Olson v. Donnelly, 70 N.D. 370, 294 N.W. 666. However, if from the record upon which the judgment is based it affirmatively appears that the court had no jurisdiction of the controversy or of the defendant, the judgment is void and may be collaterally attacked or impeached. Black on Judgments, 2nd Ed., Section 278; Freeman on Judgments, 5th Ed., Section 322; 31 Am.Jur., Judgments, Section 604; 49 C.J.S., Judgments, Sec. 425.

The plaintiff in this action asserts that the judgment quieting title in Selmer Morken is void because of the failure of the court to obtain jurisdiction over the persons of the defendants in that action. Service on the defendants was obtained by publication and the plaintiff invokes the rule that proceedings for securing service by publication must strictly comply with statutory provisions. Coman v. Williams, 78 N.D. 560, 50 N.W.2d 494; Johnson v. Ranum, 62 N.D. 607, 244 N.W. 642; Paul v. Green, 49 N.D. 319, 191 N.W. 469; Roberts v. Enderlin Investment Co., 21 N.D. 594, 132 N.W. 145; Atwood v. Tucker, 26 N.D. 622, 145 N.W. 587, 51 L.R.A.,N.S., 597; Johnson v. Engelhard, 45 N.D. 11, 176 N.W. 134.

This being an attack on the judgment rendered in favor of Selmer Morken on August 8, 1951, in an action to determine adverse claims to the property involved in this action, we examine the record upon which that judgment was rendered and the statutes pertaining thereto, in order to ascertain whether the defects pointed out by this plaintiff render that judgment absolutely void. One known defendant was named in the summons and complaint, Niels C. Larsen, who then was the record owner of the land according to the records in the office of the register of deeds of Mountrail County. All other persons were named as 'his unknown heirs or devisees if deceased; and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the Complaint * * *.' The plaintiff, Bertha L. Bartell, has filed in the...

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9 cases
  • Muhammed v. Welch, 20030182.
    • United States
    • North Dakota Supreme Court
    • February 25, 2004
    ...complaint. Although Kimball, at ¶ 31, may suggest a rejection of relation-back principles applied by some courts, and Bartell v. Morken, 65 N.W.2d 270, 274 (N.D.1954), may have indicated acceptance of the "nullity theory," it is not necessary for us to apply these principles in this case. C......
  • Jensen v. Schwartz
    • United States
    • North Dakota Supreme Court
    • May 29, 1958
    ...been strictly complied with, a judgment obtained in an action to quiet title is binding upon such unknown person or persons. Bartell v. Morken, N.D., 65 N.W.2d 270; Smith v. Mountrail County, N.D., 70 N.W.2d 4. The judgment rendered by a court of general jurisdiction having jurisdiction of ......
  • Hieb v. Jelinek
    • United States
    • North Dakota Supreme Court
    • February 23, 1993
    ...the lack of jurisdiction is obvious from the face of the judgment. See Lende v. Wiedmeier, 179 N.W.2d 736 (N.D.1970); Bartell v. Morken, 65 N.W.2d 270 (N.D.1954). We conclude that the Richland County Court had personal jurisdiction of the parties and subject-matter jurisdiction of this Adol......
  • Bickel v. Jackson
    • United States
    • North Dakota Supreme Court
    • March 16, 1995
    ...process is obtained by publication, there must be strict compliance with the provisions allowing for such service. E.g., Bartell v. Morken, 65 N.W.2d 270, 273 (N.D.1954), and cases cited therein. Service by publication is permitted by N.D.R.Civ.P. 4(e), which provides in "(e) Service by pub......
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