Clyde v. Johnson
| Decision Date | 19 March 1894 |
| Citation | 58 N.W. 512,4 N.D. 92 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McIntosh County; Lauder, J.
Action by Bessie T. Clyde against C. D. Johnson to recover the surplus arising from the forclosure of a mortgage. From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
A. W Clyde, for appellant.
For the purposes of demurrer the complaint must be liberally construed, every reasonable intendment is in its favor. The demurrer cannot take the place of a motion to make more definite and certain. Comp. Laws, 4924, 4925, Morse v Gillman, 16 Wis. 533; Flanders v. McVickers, 7 Wis. 377; Roe v. Lincoln, 56 Wis. 66; Redman v Ins. Co., 51 Wis. 298; Grannis v. Hooker, 29 Wis. 66; Pomeroy's Rem. § 549. An action lies at the suit of the mortgagor or his legal representatives or assigns for the surplus arising from foreclosure sale. Comp. Laws 5424, Johnson v. Day, 2 N.D. 297; Millard v. Truax, 10 N.W. 358; Kennedy v. Brown, 15 N.W. 498.
M. F. Mason and A. S. Drake, for respondent.
When the service of a paper by one party has the effect of setting time to run against the opposite party, the time which thus begins to run shall be twice as long when the service is by mail as when made personally. 5331 Comp. Laws; Dorlon v. Lewis, 7 How. Pr. 132; Cusson v. Whalon, 5 How. Pr. 305; VanHome v. Montgomery, 5 How. Pr. 238; Washburne v. Herrick, 4 How Pr. 15; 4 Waits Practice, 620. When demurrer was served too late the delay was waived by not returning the copy served. Rogers v. Rockwood, 13 N.Y.S. 939. It is alleged that plaintiff is mortgagor and is entitled to surplus by virtue of a deed of conveyance of the property sold to her made and delivered by A. W. Clyde. It is not alleged that A. W. Clyde so conveyed before the sale made by the defendant sheriff. C. Aultman & Co. v. Siglinger, (S. D.) 50 N.W. 911.
In this action the summons was served without the complaint. Defendant appeared by his attorneys, who caused notice of appearance to be served upon plaintiff's attorney, and demanded in such notice that a copy of the complaint be served upon them at Fargo, N.D. Pursuant thereto, plaintiff's attorney served a copy of the complaint upon defendant's attorneys by mail, and duly registered the letter containing such copy of the complaint, and took the usual receipt given at the post office for registered mail matter. In due course plaintiff's attorney received through the post office the usual return receipt, which indicated upon its face that the registered letter had been received by defendant's attorneys at Fargo, N.D., at a date stated in such receipt. More than 30 days subsequent to receiving the registered letter, but within 60 days from the date at which plaintiff's attorney mailed such registered letter, the defendant's attorneys served upon the attorney of the plaintiff a demurrer to the complaint. When the demurrer came on for argument in the District Court, plaintiff's counsel appeared, and filed objections to such argument, and claimed that defendant was in default, because, as counsel claimed, the demurrer was served too late. It does not appear that the trial court made a specific ruling upon the points raised by plaintiff's objection, but, inasmuch as the trial court proceeded to hear and determine the issue of law raised by the demurrer, and made no reference in its ruling upon the demurrer to plaintiff's preliminary objections, it will be assumed for plaintiff's benefit that such objections were in fact and formerly overruled.
The preliminary questions raised are: First. Was the service of the demurrer too late? Second. If such service was too late, was the irregularity in the service waived by the retention of the copy of the demurrer? We are clear that the service of the demurrer was not too late. The service could be properly made by mail. Comp. Laws, § 5329. "In case of service by mail the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence and the postage paid." Id. § 5330. "When the service is by mail it shall be double the time required in cases of personal service." Id. § 5331. If the complaint had been personally served upon defendant's counsel, they would, under the statute, have been required to serve their answer thereto, within 30 days from the date of such personal service. Id. § 4895. But the complaint was served by mail, and it follows, under § 5331, supra, that the defendant had double time in which to answer, i. e. 60 days; and the demurrer was served within 60 days. But appellant's counsel contends that the facts above set forth show a personal service by delivery of a copy of the complaint under Id. § § 4898, 4899; and that the return receipt, signed by the defendant's attorneys at the date of receiving the registered letter, constitutes proof that the copy of the complaint was received by delivery on the day the registered letter was taken from the post office at Fargo by defendant's attorneys. The theory of counsel that service by mail is a personal service, because it is shown that the letter mailed was received on a date certain, is novel. No authority is cited in support of the contention, and we think none can be found. There is no written admission of service, signed by defendant's attorneys; nor does the record show that an affidavit or other proof was filed in the court below, showing that the copy of the complaint which was inclosed in a letter and mailed at Ashley, N.D., was ever received in fact by defendant's counsel. Conceding that the returned receipt shows when the registered letter was taken from the post office, it yet fails to constitute proof that the copy of the complaint was personally served on defendant's counsel at that time. Nor do we think that service of a paper by mailing the same can be converted into personal service by showing the fact that the paper was received at the time it was taken from the post office by the attorney to whom it is addressed. The law permits the service of papers by mail in lieu of personal service under certain circumstances, but we think no authority can be shown for a mode of serving papers compounded of service by mail and personal service. The service by mailing is complete when the paper is mailed; none the less so in a case where the letter containing the paper is never received by the attorney to whom it is addressed. 4 Wait, Pr. 620, 622, and cases cited; Trust Co. v. Keeney, 1 N.D. 411, 413, 48 N.W. 341. But it is also quite clear, if the demurrer was served too late, that the irregularity was waived by plaintiff's counsel by not returning the copy served upon him. 4 Wait, Pr. 624; Rogers v. Rockwood, 13 N.Y.S. 939. The record is silent as to whether the copy of the demurrer was returned, but the plaintiff alleges error in proceeding to a hearing on the demurrer. It was not error to take up and dispose of the issue raised by the demurrer if the alleged irregularity had been waived. The burden is on the plaintiff to show error. This court will presume, until the contrary is shown, that the court below proceeded regularly. Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867.
Passing to the merits, we find that the demurrer to the complaint was upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint is as follows: ...
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