Boeing v. McKinley

• Decision Date: 20 October 1890
• Citation: 44 Minn. 392,46 N.W. 766
• Parties: BOEING v MCKINLEY ET AL.
• Court: Minnesota Supreme Court

44 Minn. 392

46 N.W. 766

BOEINGvMCKINLEY ET AL.

Supreme Court of Minnesota.

Oct. 20, 1890.

(Syllabus by the Court.)

1. Defendants in an action relating to real property, proceeded against as “the unknown heirs” of a deceased person, as authorized by section 5, c. 75, Gen. St. 1878, upon whom the summons was served by publication only, and against whom judgment by default has been entered, may apply to be relieved from it and for leave to answer and defend under section 125, c. 66, Id., within one year after notice of the entry of judgment.

2. A party to whom said heirs have transferred and conveyed their interest in said real property, after the entry of judgment, is a proper party to make such application, and, upon its being granted, can be duly substituted as a defendant in place of “the unknown heirs.”

Appeal from district court, St. Louis county; STEARNS, Judge.

Draper & Davis, for appellant.

O. L. Young, for respondent James S. Hosmer.

COLLINS, J.

This action was originally brought by one Derby, as plaintiff, to determine adverse claims to vacant and unoccupied real estate. Among other defendants named in the summons and subsequent proceedings were “the unknown heirs” of one West, deceased. These heirs were not served personally but by publication of the summons, to which was attached and published the notice of lis pendens. No appearance having been made by either of the defendants, the court heard the proofs, made its findings, and, upon its order, judgment was entered October 4, 1887, as demanded in the complaint. On April 29, 1890, the respondent Hosmer, upon his own affidavit, those of Emma C. and Charles C. West, and a meritorious answer, obtained from the court an order to show cause why the judgment should not be set aside, and leave granted him to answer and defend in the action. From the affidavits it appeared that said Emma C. and Charles C. West were, and are, the sole heirs at law of the deceased West, and the persons designated in this proceeding as his unknown heirs; that, at the time of the commencement of the same, they were, and ever since have been, residents of the state of New York; that neither were served, personally, or by mail, with the summons, had no knowledge of it, or of the pendency of the action, or of the rendition of the judgment, until the 18th day of December, 1889. And, further, that, on the 18th day of November, 1889, said heirs at law duly sold and conveyed the premises in dispute to said Hosmer, who purchased the same for a valuable consideration, and without notice. No question is raised as to the sufficiency of the affidavits and the completeness of the answer. After the entry of the judgment and prior to the issuance of the order to show cause, the real property involved had been transferred by sundry mesne conveyances from Derby to one William Boeing. He had died, the present plaintiff becoming his sole heir at law. These facts appearing the court directed service of the order to show cause to be made upon her, which was done. At the hearing, June 25th, the court vacated and set aside the judgment, substituted Hosmer as defendant, in place of the unknown heirs of the deceased West, and granted his application...