Bismarck Public School Dist. No. One of Burleigh County v. Hirsch, 8215

• Court: United States State Supreme Court of North Dakota
• Citation: 136 N.W.2d 449
• Docket Number: No. 8215,8215
• Parties: BISMARCK PUBLIC SCHOOL DISTRICT NUMBER ONE OF BURLEIGH COUNTY, North Dakota, Plaintiff and Respondent, v. A. L. HIRSCH, Defendant and Appellant.
• Decision Date: 29 July 1965

Page 449

136 N.W.2d 449 BISMARCK PUBLIC SCHOOL DISTRICT NUMBER ONE OF BURLEIGH
COUNTY, North Dakota, Plaintiff and Respondent,
v.
A. L. HIRSCH, Defendant and Appellant. No. 8215. Supreme Court of North Dakota. July 29, 1965.
Rehearing Denied Aug. 17, 1965.

Syllabus by the Court

1. One is not privy to a judgment unless his succession to rights of the property effected thereby occurred subsequent to the commencement of the action in which the judgment was rendered.

2. A civil action is commenced by the service of a summons. Rule 3, N.D.R.Civ.P.

3. Personal service within the state shall be made upon a domestic or foreign corporation by delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. Rule 4(d)(4), N.D.R.Civ.P.

4. Service upon the Commissioner of Insurance as attorney for any foreign corporation doing business in this state as a fidelity or surety company shall be deemed good, valid, and sufficient service upon the corporation. Sec. 6-05-31, N.D.C.C.

Page 450

5. Where an offer to purchase property and a payment of $4,800 was made on July 31, 1963; a deed conveying the property was dated August 1, 1963, was acknowledged before a notary public August 22, 1963, and was delivered to grantee on August 26, 1963; and an action was commenced relative to the property August 26, 1963, resulting in a judgment for dismissal with prejudice, the grantee's succession to the rights of the property affected by the judgment did not occur subsequent to the commencement of the action and thus the grantee was not in privity with the grantor and is not bound by the judgment.

Rausch & Chapman, Bismarck, for appellant.

William J. Daner, Bismarck, for respondent.

ERICKSTAD, Judge.

This is an appeal from a summary judgment entered October 13, 1964, pursuant to the order of the District Court of Burleigh County dated October 7, 1964. The judgment determined that the plaintiff, Bismarck Public School District Number One of Burleigh County, North Dakota, was the owner of certain wood and steel bleachers situated on a tract of land owned by the defendant, A. L. Hirsch, and was entitled to their possession.

In the complaint the school district alleged in substance that since August 26, 1963, it had been the owner of certain personal property generally described as wood and steel bleachers situated on a certain tract of land and was therefore entitled to their possession.

The defendant Hirsch in his answer denied that the school district was the owner of the bleachers and alleged that he was their owner because of their attachment to real estate under a deed of warranty dated August 1, 1963, filed August 28, 1963, in the office of the Register of Deeds of Burleigh County.

Pursuant to a motion for summary judgment made by the plaintiff, based upon the notice of motion for summary judgment, the pleadings, interrogatories and answers thereto of both the plaintiff and the defendant, and the court files and records in the case of Rose Mary Hassa v. United States Fidelity & Guaranty Company of Baltimore, Maryland, and William Kirchmeier, the district court ordered summary judgment in favor of the plaintiff school district.

It is from the judgment entered pursuant to this order that the defendant Hirsch appeals and asks for a trial de novo.

The memorandum decision of the trial court indicates that the court granted the motion for summary judgment because the order of dismissal with prejudice in the Hassa action, dated August 27, 1963, was res judicata of the issue of the ownership of the bleachers, precluding the landowner Hirsch from asserting claim of ownership in this action. The court said that Hirsch was in privity with Rose Mary Hassa and therefore bound by the order dismissing her claim with prejudice.

Whether Mr. Hirsch was in privity with Rose Mary Hassa and therefore bound by the order dismissing her complaint is the basic question in this appeal.

Our answer to that question is that Mr. Hirsch was not in privity with Rose Mary Hassa and therefore the order of dismissal with prejudice in that case was not res judicata of the issue of ownership of the bleachers between the plaintiff school district and the defendant Hirsch. Thus, the summary judgment in favor of the plaintiff school district must be set aside.

To understand this court's conclusion, it is necessary that additional information be set forth.

On June 29, 1959, Rose Mary Hassa sold approximately fifty acres of land on a contract for deed to William Kirchmeier.

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When default occurred in the payment of this contract, Rose Mary Hassa initiated an action by which the contract was cancelled. The judgment cancelling the contract for deed was rendered on June 10, 1963. Rose Mary Hassa then became the sole owner of these premises. Prior to the cancellation of the contract, while Mr. Kirchmeier was in possession of the land, he erected thereon, in connection with the operation of a racetrack, the wood and steel bleachers which are the subject of this lawsuit.

On August 2, 1963, Mr. Kirchmeier gave a chattel mortgage to United States Fidelity & Guaranty Company of Baltimore, Maryland, covering the bleachers then located on the property to which the contract had been cancelled. Shortly thereafter the company commenced an action to foreclose this chattel mortgage, whereupon Rose Mary Hassa commenced an action against the company and Mr. Kirchmeier, alleging that the bleachers were permanently affixed to her land, that therefore she was the owner of the bleachers, and that she would suffer irreparable harm, damage, and injury unless the defendants were enjoined from removing the fixtures from her land. On August 23, 1963, the trial court granted Rose Mary Hassa a temporary injunction restraining the company and Mr. Kirchmeier from removing the bleachers from her land. The sheriff's return discloses that a temporary restraining order and order to show cause, notice of motion, motion for temporary restraining order and order to show cause, affidavit, and summons and complaint in an action entitled Rose Mary Hassa v. United States Fidelity & Guaranty Company of Baltimore, Maryland, and William Kirchmeier were served on August 26, 1963, upon the United States Fidelity & Guaranty Company of Baltimore, Maryland, by delivering to and leaving with Frank Albers, Commissioner of Insurance for the State of North Dakota, two true and correct copies thereof and by paying to said Frank Albers the sum of $2 in service fees; and upon William Kirchmeier by delivering to and leaving with him one true and correct copy...