Carlson v. Cohen, 45132
| Decision Date | 22 November 1974 |
| Docket Number | No. 45132,45132 |
| Parties | Anne F. CARLSON, Respondent, v. Romaine Jean COHEN et al., Appellants. |
| Court | Minnesota Supreme Court |
Romaine Jean Cohen and Hyman Cohen, pro se.
Wangensteen & Associates, and William K. Wangensteen, Wayzata, Minn., for respondent.
Considered and decided by the court without oral argument.
This is an appeal from a final judgment entered by the St. Paul municipal court in an unlawful detainer action against defendants-appellants, Romaine Jean Cohen and Hyman Cohen. We affirm.
Plaintiff-respondent is the undisputed owner in fee simple absolute of the real estate which is the subject of the action. Defendants are now in physical possession pursuant to a contract for deed dated August 30, 1972. Plaintiff experienced difficulty in obtaining payments under the contract and a series of statutory cancellation proceedings were instituted against defendants during 1973. The result of each proceeding was that defendants made payment of contract arrearages. In March 1974, plaintiff properly commenced another cancellation action and defendants failed to meet the arrearages within the prescribed 30-day period. The contract for deed was duly canceled.
On April 15, an unlawful detainer summons and complaint were filed with the clerk of the municipal court of St. Paul. On the return date, the municipal court struck the matter for defective service of process. Plaintiff then filed a new and separate summons and complaint carrying the same file number. Personal service was made on defendant Romaine Cohen by placing the summons and complaint under the windshield wiper of her automobile as she attempted to evade service in the driveway of her home.
At the trial, defendants claimed the action was improperly commenced and that the summons was not properly served. They asserted in a counterclaim the proposed defense that the cancellation had unduly enriched plaintiff in that defendants had paid a substantial amount on the contract. Defendants then requested that the case be transferred to the district court for trial on all the issues.
The court held that the action had been properly commenced and that service was proper. The court further struck the counterclaim for want of jurisdiction of the municipal court to hear equitable matters. The court then awarded a writ of restitution against each defendant, restoring plaintiff to possession of the subject real estate. Defendants appeal, providing a supersedeas bond fixed by an order of this court which also stayed all proceedings pending this decision.
1. The main issue for our determination is whether the assertion of equitable claims and defenses in an unlawful detainer action requires the municipal court to transfer the action to the district court.
The lower court based its decision upon the recent case of Miller v. Benner, 293 Minn. 400, 196 N.W.2d 293 (1972). In that case an unlawful detainer action had been commenced by the fee owners for a writ of restitution. Defendants answered by claiming an equitable interest in the property under an oral agreement and, as the municipal court lacked jurisdiction to consider the equities, sought certification of the matter to the district court. The case...
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Heiser v. Rodway
...therefore not permitted in an action for unlawful detainer. They cite a series of Minnesota cases to that effect. See Carlson v. Cohen, 1974, 302 Minn. 531, 223 N.W.2d 810; Miller v. Benner, 1972, 293 Minn. 400, 196 N.W.2d 293; William Weisman Holding Co. v. Miller, 1922, 152 Minn. 330, 188......
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Wagner v. Truesdell
...with personal service rules is not required when a party that is to be served attempts to avoid service. See Carlson v. Cohen, 302 Minn. 531, 223 N.W.2d 810 (1974) (holding that the placement of process papers under the windshield wipers of defendant's car as defendant tried to drive off an......
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USA v. Wilfran Agricultural Indus. Inc.
...to the processor server, was touched with summons, and the summons was laid in a place easily accessible to him”) and Carlson v. Cohen, 302 Minn. 531, 223 N.W.2d 810 (1974) (where plaintiff placed the papers “under the windshield wiper of a defendant's car as the defendant attempted to evad......
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Kmart Corp. v. County of Clay, No. A05-590.
...In support of this argument, ACS and Kmart rely on Nielsen v. Braland, 264 Minn. 481, 119 N.W.2d 737 (1963), and Carlson v. Cohen, 302 Minn. 531, 223 N.W.2d 810 (1974). Neither case is helpful to relators. Nielsen stands for the proposition that a defendant could not physically refuse to ac......