D'Autremont v. Anderson Iron Co.
Decision Date | 01 May 1908 |
Docket Number | 15,759 - (237) |
Citation | 116 N.W. 357,104 Minn. 165 |
Parties | CHARLES D'AUTREMONT and Others v. ANDERSON IRON COMPANY and Another |
Court | Minnesota Supreme Court |
Application to the district court for St. Louis county to have the title to certain land registered.From a judgment entered pursuant to an order of Dibell, J., confirming title in the applicants subject to a claim of defendant Gaylord applicants appealed.Affirmed.
Jurisdiction of Nonresident.
Errors and defects in the proceedings taken to obtain jurisdiction of nonresidents, of a nature tending to mislead and prejudice the defendant, are fatal to the jurisdiction of the court.
Publication of Summons -- Initial of Name.
Though the failure to insert the middle initial of the defendant's name in a summons where service is made by publication might not be fatal error, the use of a wrong initial will not confer jurisdiction over the real partydefendant.
Publication of Summons.
The publication of a summons to "George H. Leslie" confers no jurisdiction over "George W. Leslie."
Henry S. Mahon and John G. Williams, for appellants
Sullivan & Grant, for respondent Gaylord.
Proceedings to register title to real property under the Torrens system of land transfer.Respondent Gaylord had judgment confirming an asserted interest in the land, and applicants appealed.
The facts are as follows: The applicant, Charles D'Autremont, and others, including William C. Sherwood, were on May 15, 1897, and for some time prior thereto had been, the owners, but in separate and undivided interests, of the land in question.On that day a judgment was duly rendered in the district court of St. Louis county, in which the land is situated, in an action therein pending wherein George W. Leslie was plaintiff and the said William C. Sherwood was defendant, in favor of Leslie and against Sherwood for the sum of $2,091.52, which then became by the proper docketing thereof a lien upon Sherwood's interest in the land.Thereafter, on June 20, 1900, D'Autremont brought an action in the district court of said county for the partition of the land among the several owners.All persons having or claiming any interest in or to the land were made parties; Leslie being designated as a partydefendant under the name of "George H. Leslie."The result of that action was a sale of the land by a referee appointed by the court for that purpose, a division of the same having been found impracticable, and D'Autremont became the purchaser.The sale was confirmed by the court, and a formal referee's deed executed and recorded on January 19, 1901.On September 29, 1902, said George W. Leslie duly sold and assigned the judgment against Sherwood to one Sarah L. McNulty, who in turn sold and assigned the same to respondent Gaylord; both instruments of assignment being filed in the office of the clerk of the district court.The proceeds realized from the lands in the partition proceedings were insufficient to discharge the numerous judgments against Sherwood, and no part of the judgment in favor of Leslie has ever been paid.Some time in 1906 Gaylord caused execution to be issued on this judgment, under which the interest of Sherwood in and to the land was levied upon and sold; respondent Gaylord being the purchaser.In this proceeding to register title he asserted an interest in the land under and by virtue of this judgment, execution, and sale.
The sole question involved is whether the court acquired jurisdiction of George W. Leslie in the partition suit, so that the judgment rendered therein and the sale of the land by the referee extinguished the lien of his judgment against Sherwood.The summons in that action was served by publication, and, as already mentioned, designated "George H. Leslie" as defendant.It is the contention of appellant that the error in the name, the use of the initial "H." instead of "W.," was an irregularity not going to the jurisdiction of the court; while respondent contends that the error was fatal, and the publication of the summons conferred no jurisdiction upon the court to adjudicate the rights of "George W. Leslie."The trial court held with respondent, and that the lien of the Sherwood judgment was not affected by the proceedings or judgment in the partition suit.Though the partition suit was a proceeding in rem, the mere fact that the court acquired jurisdiction over the subject-matter thereof, the land, did not authorize it to adjudicate the rights or interest of parties, in the absence of proper service of summons upon them.Note to Pinney v. Investment Co.,50 L.R.A. 597;Windsor v. McVeigh,93 U.S. 277, 23 L.Ed. 914;Hassall v. Wilcox,130 U.S. 493, 9 S.Ct. 590, 32 L.Ed. 1001;Dorr's Adm'r v. Rohr,82 Va. 359, 3 Am. St. 106.And we have for consideration the question whether the publication of the summons in the form stated was a valid service thereof upon "George W. Leslie," the real party in interest.
As a general rule, the common law recognizes but one Christian name, and failure in judicial or other proceedings in giving the name of the party to state his middle name, or the initial thereof as commonly used, is not fatal to their validity.But the rule, like most rules of judicial procedure, is not without exceptions.Stewart v. Colter,31 Minn. 385, 18 N.W. 98;State v. Higgins,60 Minn. 1, 61 N.W. 816, 27 L.R.A. 74, 51 Am. St. 490.It had its origin during the early times in England, when a person had but one name, and that his Christian name.His further identification was indicated by some designated physical characteristic, place of residence, or deed of valor or virtue.Even since the adoption of the system of family names, the first or Christian name has been held by the courts of England as the true name, in legal proceedings, for the designation of persons; the middle name, or the initial thereof, being regarded as wholly unimportant.The rule has been followed and applied in proceedings both judicial and extrajudicial in this country, with occasional exceptions based upon special circumstances.
In all proceedings where an error in the name may be corrected by appropriate application to the court, or the particular person may be identified by extrinsic evidence, a mistake in the name appearing in the proceeding or writing involved is not ordinarily fatal to its validity.Our statutes, as do the statutes of nearly all the states of this country, provide for the correction of mistakes in the names of parties in judicial proceedings.R.L. 1905, § 4157;Casper v. Klippen,61 Minn. 353, 63 N.W. 737, 52 Am. St. 604;Kenyon v. Semon,43 Minn. 180, 45 N.W. 10.In respect to similar mistakes in conveyances of land, mortgages, contracts, or statutory proceedings for the foreclosure of mortgages, the rules of evidence permit the full and complete identification of parties misnamed by error or mistake.Massillon E. & T. Co. v. Holdridge,68 Minn. 393, 71 N.W. 399;Ansley v. Green,82 Ga. 181, 7 S.E. 921.Of course, to authorize such amendments in judicial proceedings, the court must have jurisdiction of the parties and afford them an opportunity to be heard, and in other proceedings those interested in the subject-matter must also be before the court, with opportunity to be heard on the question of identity.
It has often been held that the failure in any proceeding, judicial or otherwise, to include the initial of the middle name is unimportant, and not fatal to its validity.Cleveland v. Peirce,34 Ind.App. 188, 72 N.E. 604;State v. Hughes,31 Tenn. 261;King v. Clark,7 Mo. 269.The rule has been declared otherwise, however, where a wrong initial is used, particularly in deeds or other instruments affecting the title to land.Ambs v. Chicago, St. P., M. & O. Ry. Co.,44 Minn. 266, 46 N.W. 321;Burford v. McCue,53 Pa. St. 427.And there has been a tendency in some of the courts to break away from the old rule, and to hold the full true name of all parties essential in all proceedings.Parker v. Parker,146 Mass. 321, 15 N.E. 902;Com. v. Buckley,145 Mass. 181, 13 N.E. 368;Dutton v. Simmons,65 Me. 583, 20 Am. 729;Ming v. Gwatkin, 6 Rand.(Va.) 551;Bowen v. Mulford,10 N.J.L. 230.In most states it is held, in both civil and criminal actions, that an omission or the use of a wrong initial does not affect the jurisdiction of the court, where the right party is actually served with process and brought into court.Casper v. Klippen,61 Minn. 353, 63 N.W. 737, 52 Am. St. 604;14 Enc.Pl. &Pr. 301, and cases cited.
There is reason and sound sense in that view of the law.In such case the right party is actually served, and the error may be corrected without prejudice to any of his rights.Only an extremely technical view sustains the position that in such cases the error is fatal.Casper v. Klippen, supra, overrulingAtwood v. Landis,22 Minn. 558.But should the same liberal view be taken where the defendant is only constructively served with summons, as in the case at bar, by publication?We think not.
The reasons for disregarding the error where there is personal service upon the right party do not apply where the only service is by publication against a nonresident of the state.In a case of that kind the true name of the party becomes of especial importance.It is well known that there are numerous persons having the same Christian and surname, but with a different middle name, such as John O. Johnson, John A Johnson, and John M. Johnson, James A. Green, and James E. Green, and they are each identified and distinguished by the initial of the middle name.It would be intolerable in the practical affairs of life if persons by the name of Johnson, Green, or Brown, or even the numerous Jones family, should be required to take...
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