Godfrey v. Valentine
| Decision Date | 07 November 1888 |
| Parties | William J. Godfrey v. William J. Valentine |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, denying his motion to set aside a judgment, (among other grounds for want of jurisdiction,) and for leave to answer.
Order reversed.
Berryhill & Davison, for appellant.
E. R Holcombe and H. L. Williams, for respondent.
This is an appeal by the defendant from an order denying a motion to set aside a judgment entered against him in the district court, in August, 1883, the defendant never having appeared in the action. The motion raised the question of the jurisdiction of the court. After proper proof of the non-residence of the defendant, and of want of knowledge as to his place of residence, the summons was published in the St. Paul Daily Globe, and, upon proof by affidavit of such publication, and of the defendant's default, the cause was brought to hearing and judgment. The asserted jurisdictional defect is that the summons was not published "once in each week" for six consecutive weeks, as prescribed by the statute. The affidavit of publication, embraced in the judgment-roll, states that the summons was published in the St. Paul Daily Globe "for the period of six successive weeks, commencing on the 23d day of June, 1883, on which day last mentioned it was first published, and ending on the 4th day of August, 1883, on which day last mentioned it was last published. * * *" This affidavit is referred to in the judgment itself as the proof of service upon which the court entertained jurisdiction. The statute provides that proof of service by publication shall be made by affidavit, (Gen. St. 1878 c. 66, § 68,) and (in case the judgment is upon default to answer) that proof of the service of the summons be incorporated in the judgment-roll. Id. § 275. It will not be presumed that there was other proof of service than that thus shown in the record, nor, in an action against a non-resident who is shown to have been personally beyond the jurisdiction of the court, will it be presumed, the question being directly presented, that the court acquired jurisdiction by substituted service, unless that is affirmatively shown. Barber v. Morris, 37 Minn. 194, (33 N.W. 559;) Brown v. St. Paul & N. P. Ry. Co., 38 Minn. 506, (38 N.W. 698;) Morey v. Morey, 27 Minn. 265, (6 N.W. 783;) Galpin v. Page, 85 U.S. 350, 18 Wall. 350, 21 L.Ed. 959.
Following the decisions in Ullman v. Lion, 8 Minn. 338, (381,) and Golcher v. Brisbin, 20 Minn. 407, (453,) we must hold this affidavit of publication insufficient to show a publication "once in each week" for the prescribed period. This conclusion is also sustained by Hernandez v. Creditors, 57 Cal. 333.
The respondent relies in support of the judgment upon the rule declared in Curtis v. Jackson, 23 Minn 268, to the effect that the appearance by a party, unless limited to mere jurisdictional questions, cures a want of jurisdiction as to a judgment previously rendered. The propriety of that rule with respect to an appearance after judgment, and for the purpose of securing relief from the judgment, was doubted in Kanne v. Minn. & St. Louis Ry. Co., 33 Minn. 419, 421, (23 N.W. 854.) The doctrine of Curtis v. Jackson, to the full extent expressed in that decision, cannot, we are...
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