Corson v. Shoemaker

• Decision Date: 29 November 1893
• Citation: 55 Minn. 386,57 N.W. 134
• Parties: CORSON v. SHOEMAKER ET AL.
• Court: Minnesota Supreme Court

55 Minn. 386

57 N.W. 134

CORSON

v.SHOEMAKER ET AL.

Supreme Court of Minnesota.

Nov. 29, 1893.

(Syllabus by the Court.)

1. An action to reform the description of the real property in a deed is one, the subject of which is the real property, the title of which is sought to be effected; and the relief demanded consists in excluding the defendant from any interest therein, within the meaning of Gen. St. 1878, c. 66, § 64, providing for the service of summons by publication.

2. The filing of evidence that the defendant cannot be found in the state is an essential prerequisite to the service of the summons by publication. This evidence may consist, either of the return of the sheriff, or of affidavits by others of facts showing, prima facie, that the defendant cannot be found in the state, but in every case the evidence must be filed before the publication of the summons. The mere affidavit of the plaintiff, his agent or attorney, that he believes “that the defendant is not a resident of the state, or cannot be found therein,” is not sufficient.

Appeal from district court, Hennepin county; Canty, Judge.

Action by Henry H. Corson against Reginald H. Shoemaker and others to reform a deed. There was judgment for plaintiff, and defendants appeal. Reversed.

Savage & Purdy, for appellants.

Wm. B. McIntyre, for respondent.

BUCK, J.

This is an action to reform the description of real property in a deed, and the record thereof, with the usual prayer for general relief. It is alleged in the complaint that about the 23d day of March, 1874, Eliza Fanny Shoemaker was the owner in fee simple of certain real property situated in the county of Hennepin, in this state, and that about that date she and her husband, Reginald H. Shoemaker, one of these defendants, for the consideration of $9,000, purchased said property, and that the Shoemakers intended to execute a warranty deed thereof to plaintiff, but by the mutual mistake of the parties a part of the description of said property was omitted from said deed, and the deed was executed for only a portion thereof. It is also alleged that said Eliza Fanny Shoemaker died testate in 1875, and by the terms of her will, and the probate proceedings thereon, all of the estate of which said Eliza F. Shoemaker died seised was assigned by the probate court to her husband, Reginald H. Shoemaker, and that subsequently the other defendant herein, Amelia D. Shoemaker, became the wife of said Reginald H. Shoemaker. It does not appear that the defendants or Eliza F. Shoemaker ever resided in this state, but the complaint alleges that the defendants, at the time of the commencement of this action, were residents of the state of California. The plaintiff, proceeding in the action, attempted to obtain constructive or substituted service of the summons upon the defendants, upon the grounds that they were nonresidents of the state, and that the defendants claimed a lien and interest in the real property which was the subject of the action, and also that the relief demanded consisted in excluding the defendants from any interest therein.

Section 64, c. 66, Gen. St. 1878, provides that, when the defendant cannot be found within the state,-of which the return of the sheriff of the county in which the action is brought, that the defendant cannot be found in the county, is prima facie evidence,-then, upon the performance of certain other conditions, not necessary to state here in full, the plaintiff may publish a summons, in certain cases, as provided in said section. The service of a summons by publication called “constructive or substituted service,” is not in accordance with the common law; and resting, as it does, upon statutory law, it must be strictly followed. It is a constitutional guaranty that no person shall be deprived of his property without due process of law, and is too fundamental to need discussion. A part of this due process of law is due notice; something to bring a party before the court for hearing and judgment, or to warn him that judicial proceedings have been, or are to be, taken against him or his property. Having due notice, he can appear, or remain in default, at his peril. The notice to be given, then, for such purpose is not one of idle ceremony, or mere formality. If personal service of notice or process cannot be made upon a party, then comes constructive or substituted service; and here we must apply the rigid rules of the law, even though, in some cases, it may lead to seeming hardship. The law recognizes the right of a nonresident to own real property within this state. It guards that right with jealous care, but, while doing so, provides that our own citizens shall not be powerless to enforce their own rights against the nonresident property holder. But it has exacted as a condition precedent to acquiring jurisdiction in such proceeding, where large property interests may be involved, and where the rights of nonresident property holders are to be adjudicated, that the statutory authority must be followed, both in the letter and spirit of the law. This must appear affirmatively. Presumptions will not do. The question here raised is this: Was the plaintiff authorized to proceed with the publication of the summons before the certificate of the sheriff, upon the summons, that the defendant could not be found in his county, was filed with the clerk of the court? Or, in other words, was it a complete return, within the meaning of the law, until it was so filed?

The affidavit of the plaintiff's attorney, as required by law in such cases, was filed with the clerk in due time; but the summons with the sheriff's certificate thereon of defendants' nonresidence was not filed with the clerk of the court until April 8, 1893. The first publication of the summons was March 4, 1893; and the last one, April 8, 1893. When a sheriff serves a summons personally the proof of such service is made by his certificate thereof. Gen. St. 1878 c. 66, § 68. When he is required to make a return that the defendant cannot be found within his county, which return thereby becomes prima facie evidence of the fact that he cannot be found in the state, we think that, in order to have that return complete, it includes the sheriff's certificate of such fact, and the filing of the same with the clerk of the court. When this is done the return is perfected, and becomes a matter of record, and prima facie evidence of the facts therein recited, as provided by statute. The filing of the affidavit and return would not exclude other competent proof of the nonresidence of the defendants. This evidence may consist either of the return of the sheriff, or of affidavits of others of facts showing, prima facie, that the defendants cannot be found in the state, but in every case the evidence must be filed before the publication of the summons. The mere affidavit of the plaintiff, his agent or attorney, that he believes “that the defendant is not a resident of the state, or cannot be found therein,” is not sufficient. There is no such proof in this case, however. The omission of the legislature to provide in the law, by express terms, that the return should be filed with the clerk of the court, while it did so provide for the filing of the affidavit, was doubtless due to the fact that the return of the sheriff was not deemed complete until filed with the clerk of the court. In the case of Barber v. Morris, 37 Minn. 194,33 N. W. Rep. 559, it was held that, under the section of our statute above quoted, the filing of the affidavit there required to be made by the plaintiff, his agent or attorney, was a condition precedent to an authorized publication of a summons. And in Rice on Evidence (volume 1, p. 217) the rule laid down is that “the admissibility of a return depends upon the fact that it is duly filed, as, upon filing, it becomes a part and parcel of the record in the case.” In attachment proceedings, however, under the statute, “the original writ, with the sheriff's certificate of attachment of property indorsed thereon, is admissible in evidence on the trial of the action, although the same was not returned and filed with the clerk of the court until long after the entry of the judgment.” Cousins v. Alworth, 44 Minn. 505,47 N. W. Rep. 169. We do not decide that the officer must forthwith file the summons in the clerk's office upon the making of his certificate, indorsement, or statement upon the summons that the defendant cannot be found in his county; but we do hold that the return, within the meaning of the statute, is not complete, so as to authorize the publication of a summons, until it has been so filed.

We now pass to the more important question,-whether, if all of the conditions necessary to an authorized publication of a summons have been complied with, under section 64, c. 66, Gen. St. 1878, the courts of this state can acquire jurisdiction, so as to proceed lawfully for the reformation of a deed, where there has been a mutual mistake of the parties, in omitting from the deed a part of a description of the land paid for by the plaintiff, and intended to be inserted in the deed. We say “more important question,” because the conditions precedent for an authorized publication of a summons are easily complied with by the careful practitioner. But, if every statutory prerequisite in this respect has been strictly complied with, the whole proceedings would be utterly useless, if no jurisdiction could thereby be acquired over the subject-matter, in cases of this kind. We have already referred to the jealous care with which the state, in her sovereign capacity, protects the property and rights of a nonresident, whose property is situate within our own boundaries. The contention of the defendants is that a state court is powerless, in an action of this kind, to protect its own citizens against the acts or mistakes of parties, where the defendant is a nonresident, and cannot be found within this...