Cousins v. Alworth
| Decision Date | 17 November 1890 |
| Citation | 44 Minn. 505 |
| Parties | GEORGE A. COUSINS <I>vs.</I> MARSHALL H. ALWORTH and another. |
| Court | Minnesota Supreme Court |
W. Hammons and J. A. Payne, for appellant.
Draper & Davis, for respondents.
This action was brought to quiet the title to certain real property claimed by both parties. There was no controversy over the facts. One Linnie V. Atwater was the owner of the property on September 20, 1886. She was not then, and never has been, a resident of this state. The plaintiff's claim is based upon a deed in due form, executed, acknowledged, and delivered to him by said Atwater on March 12, 1890, while the defendants' adverse claim of title depends upon the sufficiency and regularity of the proceedings in an action to recover the amount of two promissory notes, brought in the district court for the county wherein the land was and is situate, in which action one Wendall was the plaintiff and said Atwater the defendant. The latter was proceeded against as a non-resident, the land actually attached in the manner prescribed by statute, the summons published, and thereafter, upon affidavit of no answer, judgment was entered and docketed in favor of plaintiff Wendall and against defendant Atwater, for the amount due on said notes. This was on the 26th day of November, 1886. Subsequently an execution was issued, and the attached property sold at execution sale, January 17, 1887, to the judgment creditor. There was no redemption from the sale, and on December 19, 1889, the land was sold and conveyed by the purchaser at the sale to the defendants. On January 20, 1890, but not before, the sheriff who made the attachment filed the original writ, with his return thereon, in the office of the clerk of the district court. It stands conceded by the appellant that all of the proceedings were proper, regular, and adequate in every particular, except in respect to the return to the clerk of the court of the original writ with the sheriff's certificate thereon. As before stated, this was not done until long after the execution sale through which defendants acquired title to the land, if acquired at all. The appellant asserts with great earnestness that the failure of the sheriff to return and file the writ, with a proper certificate as to his execution of the same indorsed thereon, prior to the entry of judgment, was a fatal omission in the proceedings, and, further, that, in any event, the certificate finally made and filed was insufficient and defective.
1. An action against a non-resident, although in form in personam, is in effect in rem, and it is only by attaching property that the court acquires jurisdiction to further proceed, and then only to the extent of the property attached. Kenney v. Goergen, 36 Minn. 190, (31 N. W. Rep. 210.) Such actions are authorized, and the procedure is regulated, by sections 64, 65, 68, 70, and various sections found in title 9 () of chapter 66, Gen. St. 1878; and, were it not for some of these sections, the right to proceed against a non-resident upon whom personal service of a summons could not be made within this state, would not exist. Section 64 prescribes the cases in which a summons may be constructively served by publication. A certain return must be made upon the summons by the sheriff of the county in which the action is brought, and this return is made prima facie evidence that the defendant cannot be found within the state. An affidavit containing certain statements must be filed with the clerk, and such filing is a condition precedent to an authorized publication of the summons. Barber v. Morris, 37 Minn. 194, (33 N. W. Rep. 559.) And in this affidavit it must be stated that the defendant has property within the state subject to attachment. Feikert v. Wilson, 38 Minn. 341, (37 N. W. Rep. 585.) Proof of the publication of the summons must be made as provided by the second subdivision of section 68. The provisions of the statute in relation to attachments are not found in connection with the sections which regulate proceedings against non-residents, but elsewhere, — in title 9, before referred to. By section 151, which is general in its application, it is provided that real estate shall be attached by the officer leaving a certified copy of the writ, and of his return of such attachment thereon, at the office of the register of deeds of the county in which the land is situated, and, when the defendant cannot be found in the county, no further act or ceremony is required to complete the attachment. It is further provided, by section 160, that whenever any real estate has been attached, it shall be bound, and the attachment shall be a lien thereon, from the time that a certified copy of the same, with a description of the real property seized, has been delivered for record in the office of the register before mentioned. Now all of these statutory steps were taken in this instance, and it must be evident that when the sheriff complied...
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