Crombie v. Little

• Decision Date: 28 December 1891
• Citation: 47 Minn. 581,50 N.W. 823
• Parties: CROMBIE v LITTLE ET AL.
• Court: Minnesota Supreme Court

47 Minn. 581

50 N.W. 823

CROMBIEvLITTLE ET AL.

Supreme Court of Minnesota.

Dec. 28, 1891.

(Syllabus by the Court.)

1. The act of March 5, 1853, (Comp. St. 1858, p. 480,) was intended to make both the form of process and the manner of its service in equity actions conform to that which obtained in other civil actions.

2. An action to foreclose a mortgage upon real estate was one the subject of which is real property, and in which the relief demanded consisted partly in excluding the defendant from any interest therein, within the meaning of the fifth subdivision of section 1, c. 42, Laws 1864, providing for the publication of summons.

3. An affidavit for the publication of a summons need not be sworn to on the day on which the action is commenced. All that is necessary is that it be sworn to within such reasonably brief period before the publication that no presumption can fairly arise that the state of facts has changed in the mean time.

4. Such an affidavit is not void because entitled in an action not actually commenced when the affidavit was sworn to.

5. Where an affidavit is sworn to before the deputy clerk of the district court, a jurat signed by him, “A. B., Clerk, by C. D., Deputy,” is good.

6. If the affidavit for publication is filed with the clerk of the district court, the fact that he fails to keep his office at the county-seat will not invalidate the publication of the summons.

7. A certain instrument purporting and intended to be a “sheriff's deed” on foreclosure sale, which contained all that was required in a “certificate of sale,” held operative as a certificate, although unauthorized as a deed.

Appeal from district court, St. Louis county; O. P. STEARNS, Judge.

Action by Robert Crombie against William H. Little and others to recover land. Judgment for plaintiff. Defendants appeal. Affirmed.

J. W. Bull and S. L. Smith; for appellants.

R. R. Briggs and Warner, Richardson & Lawrence, for respondent.

MITCHELL, J.

The question involved in this case is the validity of the foreclosure by action in 1864-65 of a mortgage executed by defendant Little, in which the summons was served by publication. While a great number of points have been made against this foreclosure, yet, in our judgment, the whole case turns upon the validity of the service of the summons by publication; for, it if was duly served so that the court acquired jurisdiction to proceed in the action, everything in the subsequent proceedings to which objection is made would be, at most, merely irregularity or error, which would not affect the validity of the judgment or of the title acquired under it. The first and preliminary question is what statute then governed the manner of service of the summons in such actions. The act of March 5, 1853, (Comp. St. 1858, p. 480,) provided: “Section 1. That all equity and chancery jurisdiction *** shall be exercised, and all suits or proceedings to be instituted for that purpose are to be commenced, prosecuted, and conducted to a final decision and judgment, by the like process, pleadings, and proceedings as in civil actions, and shall be called civil actions. Sec. 2. All suits, applications, and proceedings now authorized by statute to be commenced, prosecuted, and conducted in chancery or enforced by chancery jurisdiction, including the foreclosure and satisfaction of mortgages, shall hereafter be commenced, prosecuted, and conducted to a final decision and judgment by the like process, pleadings, trial, and proceedings as in civil actions.”

The contention of defendant's counsel is that this only provided for a change in the form of the process from a chancery subpœna to a summons, but that until 1866 the only law on the subject of notice by publication to non-resident defendants in foreclosure suits was the old chancery practice, (Rev. St. 1851, c. 94, § 57,) in which the court made an order for the appearance of the defendant, which order (and not the summons) was required to be published. Such a proposition would, we apprehend, be quite novel, as well as startling, to those of the bar who were engaged in the practice of law in this territory and state in those early days. We have no doubt whatever but that the act of 1853 was designed to conform, not only the form of the process, but also the manner of its service in equity suits, to that which obtained in all other civil actions. Such was always the understanding and practice of the bar. It is urged, however, that, if such is the proper construction of that act, there was not, until 1866, any statute authorizing the publication of the summons in actions of foreclosure, inasmuch as they did not fall within any of the classes of cases specified either in Rev. St. 1851, c. 70, § 50, or in Laws 1864, c. 42. This proposition is equally novel and startling, for, if correct, it would invalidate almost every foreclosure by action for a period of 13 years, where there were non-resident defendants. All we deem necessary to say on this point is that the subject of such an action is real property, the relief demanded in which consists partly in excluding the defendants, whether mortgagors or subsequent purchasers or incumbrancers, from any interest or lien therein; and therefore it falls within at least the fifth subdivision of section 1, c. 42, Laws 1864, which was the statute in force when this foreclosure action was brought, and which must control in determining the validity of the publication of the summons therein. The most subtantial, and as we think the only important, point in the case is as to the sufficiency of the affidavit for the publication of the summons. The statute of 1864 introduced a very radical, and, as we think, a very impolitic, change in the law, in that no judicial investigation of the sufficiency of the affidavit and no order of court authorizing the publication of the summons were any longer required. All that was necessary was that the party should file the statutory affidavit, and then proceed to publish. It will also be observed that, unlike many statutes on the subject, it was not necessary that the required facts should be made to “appear” or be “shown” by the affidavit; all that was necessary being that the affidavit should “state” such facts,-a distinction which the learned counsel has apparently failed to observe, judging from the cases which he cites. The facts that the defendant Little was not a resident of this state; that the affiant (the plaintiff Howard) had made diligent inquiry for him, and had reason to believe, and did believe, that such defendant was not therein,-were undoubtedly sufficiently stated in the affidavit. But, in addition to this, the statute further required the affidavit to state “that a cause of action exists against such defendant, or that he is a proper party to the action relating to real property in this state.” The statement of the affidavit in that regard is “that the subject of said action is real property situate in said county, [St. Louis county, Minnesota,] being a mortgage lien thereon, *** and that said defendant is a proper party to said action.” Bearing in mind that it was not necessary that the affidavit should state the facts showing why or how the defendant was a proper party to the action, but merely the ultimate fact itself, we think this was clearly a substantial compliance with the statute. The deputy-clerk was authorized to administer oaths, and the jurat, whether in the most approved form or not, is sufficient. Muller v. Boggs, 25 Cal. 186. The clerk of...