Grigsby v. Wopschall

• Decision Date: 04 June 1910
• Parties: GRIGSBY v. WOPSCHALL et al.
• Court: South Dakota Supreme Court

127 N.W. 605

25 S.D. 564

GRIGSBY v. WOPSCHALL et al.

Supreme Court of South Dakota

June 4, 1910

Appeal from Circuit Court, Minnehaha County.

Action by Sioux K. Grigsby against Carl G. Wopschall and others. There was a default judgment for plaintiff, and from an order denying a motion to vacate such judgment on the ground that the court had no jurisdiction defendants appeal. Reversed with directions.

Fuller & Fuller and William G. Porter, for appellants.

Grigsby & Grigsby, for respondent.

McCOY J.

This suit was commenced on the 8th day of December, 1908, in the circuit court of Minnehaha county by respondent, as plaintiff, against appellants, as defendants, to quiet title to certain real estate situated in Roberts county, this state. The summons was served by publication. No appearance or answer was made by defendants, and judgment was therefore entered in favor of plaintiff and against defendants quieting title in said real estate in plaintiff. Thereafter immediately upon discovering the entry of said judgment defendants, appearing specially and not otherwise, moved the court to set aside and vacate said judgment, upon the ground that the court had no jurisdiction over the parties to the action or the subject-matter thereof, and that the court had no jurisdiction to render said judgment. Upon the hearing of said motion the court made the following order: "Ordered that said motion be, and the same hereby is, in all things overruled and denied without prejudice, however, to the defendants moving to open the judgment and for leave to answer should they be so advised." To the making and entry of said order the defendants duly excepted. Defendants appeal and assign as error the making and entry of said order overruling said motion to vacate said judgment. The order for publication of summons was based upon the affidavit of plaintiff, and the return certificates of the sheriffs of Roberts and Minnehaha counties, which are as follows:

"I J. L. Minder, sheriff in and for the county of Roberts and state of South Dakota, do hereby certify and return that the summons in the above-entitled action came into my hands for service on the 15th day of December, 1908, and that I immediately began diligent search and inquiry for the above-named defendants, and each of them, within said county of Roberts, and that I inquired of L. M. Foss, clerk of courts, and of W. C. Oliver, county auditor, and also of Casper Kennedy, postmaster, all of Roberts county, South Dakota, all of whom are well acquainted throughout the county of Roberts, state of South Dakota, as to the whereabouts of the said defendants, and each of them, and that all of said parties stated that to the best of their knowledge, information and belief none of the said defendants were residents of the state of South Dakota or could be found therein. That I was informed by the said L. M. Foss, aforesaid, that to the best of his knowledge, information and belief the said defendants, Carl G. Wopschall, Otto H. Wopschall and Gustav Wopschall, were residents of the state of Wisconsin, but was unable to give their residence or post office address, and that I could find no trace of the defendant W. H. Hartzell whatever. That I am personally well acquainted throughout the county of Roberts and state of South Dakota, and that to the best of my knowledge, information, and belief none of the said defendants are residents of or can be served with the summons herein in the state of South Dakota. After diligent search and inquiry in the county of Roberts, and state of South Dakota, and being unable to find the said defendants or either of them, I therefore return said summons not served. Dated this 15th day of December, 1908. J. L. Minder, Sheriff, Roberts County, S. Dak."

"I, C. M. Nelson, sheriff in and for the county of Minnehaha and state of South Dakota, do hereby certify and return that the summons in the above-entitled action came into my hands for service on the 25th day of January, 1909; that I have inquired of W. C. McConnell, clerk of courts, James Monroe, register of deeds, Charles E. Hill, county auditor, and other parties regarding the whereabouts of the said defendants and each of them; that all of said parties inquired of informed me that of the best of their knowledge, information and belief the said defendants or either of them, are not residents of the county of Minnehaha, state of South Dakota, and cannot be found therein; that I am well acquainted throughout the county of Minnehaha and state of South Dakota and do not know the said defendants, and have been unable to find them, or either of them, after due and diligent search and inquiry and that to the best of knowledge, information and belief they are not residents of or now within the state and cannot be found therein. I therefore return said summons not served. Dated this 26th day of January, 1909. C. M. Nelson, Sheriff of Minnehaha County, State of South Dakota."

Affidavit for publication: "Sioux K. Grigsby, being first duly sworn, deposes and says: That he is a member of the firm of Grigsby & Grigsby, attorneys for the plaintiff in the above-entitled action, which has been commenced by the filing of a complaint in this court, the recording of a notice of lis pendens and the issuance of a summons herein, which summons and complaint are hereto attached and specifically made a part thereof; that this action is brought by the plaintiff against said defendants to quiet the title of plaintiff in and to certain lands in the said complaint more particularly described, and that the said defendants and each of them are necessary parties hereto, and that a cause of action exists in favor of the plaintiffs and against the said defendants and each of them, and that this court has jurisdiction of the said action, as more fully appears by the said complaint. That the said defendants, or either of them after due diligence, cannot be found within the state of South Dakota, and that personal service of the summons in this action cannot be made upon the said defendants, or either of them, within said state of South Dakota and that to the best of this deponent's knowledge, information, and belief, the said defendants are not residents of and do not reside in and are not now within the said state of South Dakota. That due and diligent effort has been made by affiant to find the above-named defendants, and each of them, within the state of South Dakota and to serve upon them, the summons in this action, to wit: That for the purpose of ascertaining the defendants' whereabouts and of making personal service of the summons...