Brettell v. Deffebach

• Decision Date: 02 October 1894
• Citation: 60 N.W. 167,6 S.D. 21
• Parties: BRETTELL v. DEFFEBACH et al.
• Court: South Dakota Supreme Court

60 N.W. 167

6 S.D. 21

BRETTELL v. DEFFEBACH et al.

Supreme Court of South Dakota

October 2, 1894

Syllabus by the Court.

1. While, as a general rule, none but parties to a judgment can have it set aside, a real party in interest alone prejudiced by a judgment rendered by default in an action to which he was not made a party has a standing in court that entitles him to move to have such judgment vacated and set aside, on the ground that there was no service of the summons sufficient to give the court jurisdiction of the person of the nominal defendants, and that the case was not prosecuted with reasonable diligence.

2. Where the only proof that a summons purporting to have been lost or destroyed was ever served upon a defendant, who is in default, consists of an affidavit made by the plaintiff in the action, in which he states that said summons was served upon defendant personally by one H. more than seven years and six months prior to the making of such affidavit, and there is nothing in the affidavit nor record showing affiant's means of knowledge, or relating in any manner to the particulars of the loss or destruction of the summons, or excusing the delay in making a return thereon, or explaining why said proof of service was not originally made by the affidavit of the party who served the summons, held, to be secondary in its nature, without proper foundation as to admissibility, uncertain, if not hearsay, in its character and withal ineffectual as proof of such service, and therefore insufficient to confer upon a court jurisdiction of the person of the defendant. Corson, P. J., dissenting.

3. In an action against joint claimants and purported owners of real estate to obtain the exclusive possession of and title thereto, a judgment by default, granting such relief, and quieting the title to such property in plaintiff as against the defendants jointly, one of whom was never served nor appeared in the action, is erroneous, and should be set aside on motion.

Appeal from circuit court, Lawrence county; Charles M. Thomas Judge.

Action by George E. Brettell against Erasmus Deffebach and others. From an order setting aside a judgment obtained therein plaintiff appeals. Affirmed.

Granville G. Bennett, for appellant. Martin & Mason, for respondents.

FULLER J.

This is an appeal from an order of the circuit court, made and entered on the 30th day of June, 1890, vacating and setting aside a judgment by default rendered in said court on the 1st day of July, 1889, in an action purporting to have been instituted on the 1st day of November, 1880, involving the right of possession and ownership of certain mining property situated in that portion of Lawrence county designated as the "Whitewood Quartz-Mining District." Nothing to indicate that a suit was pending was ever filed in court until more than 7 1/2 years after the commencement thereof and on the 2d day of May, 1888, plaintiff made and presented to the court an affidavit to the effect that the summons was personally served upon the defendants Deffebach and King, by one J. W. Handlin, on the 1st day of November, 1880, and that said summons had been destroyed or lost. Upon this affidavit and the affidavit of defendant Deffebach, that said summons was served upon him by said Handlin on the 1st day of November, 1880, it was ordered by the court that a copy of said summons annexed to such affidavit be substituted for the original summons, and that the same be filed as a record in said action. On the 1st day of July, 1889, a judgment by default was entered, awarding the possession of the property described in the complaint to, and quieting the title thereof in, plaintiff as against defendants, and each of them, and their successors in interest. Within a year thereafter, and on the grounds that there is no proof that the summons was ever served, and that the case has not been prosecuted with reasonable diligence, the respondent Milliken moved the court to vacate and set aside said judgment by default, and in support of such application submitted the records and files in the action, together with his affidavit, the recitals of which, so far as material, will be discussed in the opinion. It appears from the record and the affidavit of respondent above referred to that defendants, on the 4th day of August, 1880, filed in the United States land office an application for a patent to a portion of the property claimed by plaintiff by virtue of certain work done and improvements made thereon as provided by the United States land laws, on the 20th day of June, 1877, and subsequently thereto; that respondent Milliken purchased at judicial sale defendant King's interest in that portion of the property in controversy known as the "May Belle Mining Claim," and secured a sheriff's deed therefor on the 14th day of December, 1882; that on the 18th day of July, 1882, defendant Deffebach deeded his interest in the property to his wife, Elizabeth J. Deffebach, and on the 29th day of September, 1887, she transferred the same by deed to the respondent, who thus succeeded to whatever interest defendants Deffebach and King then had in said property, and on the 19th day of October, 1887, after receiving a certificate from the clerk of the district court that no suits were then pending against said property, and after filing in the United States land office, as required by a rule of the department, a certified copy of a judgment of the district court dismissing a certain suit which had been previously instituted by this plaintiff affecting the property in question, he entered said May Belle claim in the United States land office, and paid the receiver of said land office $30 in full for all the land embraced within the limits of said May Belle claim, and obtained a receiver's receipt therefor; that nothing further was done in the premises until January 12, 1888, when W. H. Jones, Esq., clerk of the district court, certified that two suits were pending against the May Belle claim, one of which was based upon the Rochester mining claim, and the other upon the Father Abraham mining claim. Attached to and made a part of respondent's affidavit is a certificate of the clerk relating to facts connected with the making of said certificate of suits pending, from which we copy the following: "In United States Land Office, Deadwood District, Dakota. In the Matter of Lode M. E. No. Made by James Milliken. Certificate, Clerk Court. Territory of Dakota, County of Lawrence--ss.: I, W. H. Jones, do hereby certify that I am the clerk of the district court of the first judicial district, territory of Dakota, in and for Lawrence county, and also of the United States district court for the same district, and have been such clerk since. That the certificate of suit pending in this matter, given by me on January 12, 1888, was signed at the request of George E. Brettell and Wm. H. Parker, his attorney, upon the following evidences of suit pending, and none others: (1) Messrs. Brettell and Parker, on or before Jan. 12, 1888, showed me the private docket of cases kept by Gilber B. Schofield, Esq., now deceased, formerly one of the attorneys for the owners of the Father Abraham and Rochester mining claims, in which docket was entered (a) the case of George E. Brettell et al. vs. Elisha Riggs, together with an unverified notation of his own that the papers therein were served on August 20, 1880, without stating by whom or in what manner; (b) the case of George E. Brettell et al. vs. Erasmus Deffebach, together with an unverified notation that the papers therein were served on November 1, 1880, without stating by whom or in what manner; (c) the case of George E. Brettell et al. vs. Erasmus Deffebach, together with an unverified notation that the papers therein were served on November 1, 1880, without stating by whom or in what manner; but that I saw none of these papers in any of these cases at that time, and no such papers had been theretofore on file in my office, so far as I could find after an exhaustive search. That there was nothing in the private office dockets referred to to indicate the nature or subject-matter of any of these cases. (2) Upon January 11 or 12, 1888, W. H. Parker, Esq., attorney for Brettell et al., paid to me, the clerk of court, filing fees in each of the above-named cases, which had not theretofore been paid, and requested that they be docketed, and placed upon the calendar of this court. (3) On January 13, 1888, Messrs. Brettell and Parker, in accordance with the promises made by them at the time of obtaining my certificate of suits pending, filed in my office a complaint entitled *** 'George E. Brettell, Plaintiff, vs. Erasmus Deffebach and John King, Defendants,' signed by Parker & Schofield, attorneys for plaintiff, which had never theretofore been filed, bears no date whatever, and bears upon it, or with it, no proof or admission of its ever having been served upon any parties. This is the only paper in this case, so far as I can ascertain, on file in my office. There is no summons in the case, and no proof or admission of service thereof, or of any other paper therein. This complaint alleges that the plaintiff is the owner and entitled to the possession of the Rochester lode; that defendants claim some interest therein, adverse to plaintiff, by virtue of the May Belle claim; that defendants filed application for patent to the May Belle lode on August 4, 1880; that, on the 2d day of October, 1880, plaintiff duly filed his protest and adverse claim in said land office, and that this action is brought to determine the right of possession to said property; that the words '2d' and 'October' last above are filled in with a different kind of ink from the body of the complaint, are of a fresher...