Haney v. Haney
| Decision Date | 01 May 1925 |
| Docket Number | 24,414 |
| Citation | 203 N.W. 614,163 Minn. 114 |
| Parties | MAUD HANEY v. JOHN RAGLAN HANEY |
| Court | Minnesota Supreme Court |
From an order of the district court for Hennepin county dated July 15, 1924, Molyneaux, J., granting the motion of defendant who appeared specially for that purpose, to set aside plaintiff's judgment against him, and service of summons and from an order dated August 16, 1924, Baldwin, J granting the motion of defendant, who appeared specially for that purpose, to set aside an attempted service of summons and complaint upon him on or about July 22, 1924, plaintiff appealed. Former order reversed and order of August 16, 1924 affirmed.
Statutory substituted personal service of process.
1. As a foundation for substituted personal service without the state under section 9234, G.S. 1923, every step must be made to permit the service to be made by publication.
Party appearing specially not entitled to notice of subsequent proceedings.
2. A party challenging the jurisdiction of the court on a special appearance, of which due notice is given, is not entitled to notice of subsequent proceedings under section 9239, G.S. 1923.
District court may replace its lost or destroyed records.
3. The district court has the inherent power to replace its records when lost or destroyed by accident, negligence or wantonness.
How such replacement may be ordered.
4. It is in the discretion of the court as to whether the necessity for replacement shall be shown by affidavit or oral testimony. Where the adverse party has not made a general appearance, such replacement of records may be ordered in ex parte proceedings; but, if made improvidently or unsupported by the truth, the order may be vacated upon proper showing being made.
Substituted papers of same validity as original.
5. The substituted papers become of equal validity to those which have disappeared.
Right of appeal from adverse ruling.
6. Plaintiff, upon an adverse ruling vacating a judgment and setting aside a personal service without the state, does not waive his right to appeal from such ruling, by filing a new affidavit and causing another personal service to be made without the state.
Party defendant appearing specially cannot litigate ownership of property attached.
7. A defendant cannot on a special appearance contest or litigate the question of his interest in property attached.
Affidavit for publication of summons.
8. Defects in an immaterial clause in an affidavit for the service of a summons by publication cannot destroy the affidavit which must be considered in its entirety.
Delay in making personal service of summons unreasonable.
9. A delay of nine months, in making a personal service of a summons without the state, after the making of the sheriff's return that defendant cannot be found, is as a matter of law unreasonable and the return will not support and sustain the service.
1. See Process, 32 Cyc. p. 489.
2. See Appearances, 4 C.J. p. 1370 § 68a (1926 Anno).
3. See Courts, 15 C.J. p. 980, § 406; Records, 34 Cyc. p. 606.
4. See Records, 34 Cyc. pp. 608, 609.
5. See Records, 34 Cyc. p. 610.
6. See Appeal and Error, 3 C.J. p. 665, § 536.
7. See Appearances, 4 C.J. p. 1370, § 68.
8. See Process, 32 Cyc. p. 475.
9. See Process, 32 Cyc. p. 489 (1926 Anno).
I. E. McElroy, for appellant.
Thompson, Hessian & Fletcher, for respondent.
Plaintiff has a Canadian judgment against defendant who lives in Winnipeg. In October, 1923, she brought suit in this state upon her judgment and procured a writ of attachment against real estate in Hennepin county. On October 22, 1923, the summons and complaint were filed with the sheriff's return that defendant could not be found. An affidavit for service by publication was then filed, in which there was no statement that a copy of the summons had been mailed to the defendant, although his residence was stated. The summons was then personally served on defendant in Winnipeg. Bond for entry of judgment was filed on January 18, 1924, and on that day judgment was entered in the sum of $23,498.02.
Over date of June 27, 1924, defendant made a motion, appearing specially, returnable on July 8, 1924, to vacate the judgment entered January 18, 1924, and to set aside the service of the summons personally made on defendant in Winnipeg. The motion was based upon the failure of the record to show that a copy of the summons was mailed to defendant as required by section 9234, G.S. 1923, and other grounds unnecessary to mention. This was followed by an ex parte proceeding in behalf of plaintiff in which her counsel filed an affidavit in which he set forth verbatim a copy of an affidavit purporting to have been made by him on October 22, 1923, in which he stated that on that date he had duly mailed a copy of the summons to defendant, which affidavit he said was written on the back cover of the original summons and complaint and filed therewith and that he had seen it there as late as December 6, 1923, but that, upon recent examination, he found that this affidavit had been torn off and was no longer in the files in the clerk's office. On July 5, 1924, the court made an order authorizing the filing of a copy of such absent affidavit, as of October 22, 1923, and to be substituted for the original thereof with like force and effect as said original filed October 22, 1923. On July 15, 1924, defendant's motion on special appearance was granted. The following day plaintiff's counsel filed a new affidavit for service of summons by publication or personal service without the state. On July 22, 1924, the summons and complaint were again personally served on defendant in Winnipeg. Over date of August 6, 1924, defendant, appearing specially, made a motion returnable on August 9, 1924, to vacate and set aside the service of the summons and complaint so made upon him on July 22, 1924. The grounds urged for this motion were the insufficiency of the new affidavit and that the record failed to show that the court had jurisdiction and was based principally upon the fact that plaintiff attempted to utilize the return made by the sheriff filed October 22, 1923. This motion carries with it an affidavit of defendant to the effect that he does not own any property in Minnesota. This part of the affidavit is fully and in form effectively answered by an affidavit of plaintiff's counsel. On August 16, 1924, the motion was granted.
Over date of August 18, 1924, plaintiff served a notice of appeal from the order of July 15, 1924. Over date of August 18, 1924, plaintiff served a notice of appeal from both the order dated July 15, 1924, and the order dated August 16, 1924. We will treat the matter as one appeal embracing both orders.
The personal service of a summons on a nonresident under section 9234, G.S. 1923, is a substitute for the service by publication. It must, therefore, be predicated upon a strict compliance with the statute. Everything must be done to permit the service by publication to be made. When this foundation for publication is put on the record the substituted service may be used. The statute says that the affidavit must show that plaintiff "has mailed a copy of the summons to the defendant at his place of residence, or that such residence is not known to him." We are of the opinion that this statute must be literally complied with in order to support a personal service on a nonresident. Gilmore v. Lampman, 86 Minn. 493, 90 N.W. 1113; H.L. Spencer Co. v. Koell, 91 Minn. 226, 97 N.W. 974; Pugsley v. Magerfleisch, 161 Minn. 246, 201 N.W. 323. The usual affidavit for service by publication said nothing about mailing a copy of the summons to the defendant, though it gave Winnipeg as his residence. This deficiency went to the jurisdiction of the court, and, if the record did not show that the summons was so mailed, the personal service made later without the state was a nullity and jurisdiction was never acquired for the entry of the judgment which followed. Without such record judgment was unauthorized. In McCully v. Heller, 66 How. Pr. 468, the court said: "it is unnecessary also to mail a copy of the summons where such personal service is had." This is cited in 32 Cyc. 489. But the difficulty with this citation is that it is based upon a statute which is not the same as ours. Section 440, Wait's New York Code of Civil Procedure of 1877. It is not in point.
Defendant now argues that this ex parte proceeding was void because no notice was given defendant of the application for such order. He invokes section 9239, G.S. 1923, which says:
"A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, after which he shall be entitled to notice of all subsequent proceedings therein."
Defendant claims this statute entitled him to have notice of the application. He had not answered. He had not demurred. He had not given a written notice of his appearance. Appearance as here used means a general appearance. Otherwise he is not entitled to notice of subsequent proceedings. He came into this case for the purpose of pointing out to the court an irregularity in its proceedings. He did this in form and language so as not to submit to the jurisdiction of the court as to any other matter. He sought to take advantage of the defect above mentioned. He was challenging the jurisdiction of the court. He was a stranger except for the special purpose. It cannot be presumed so long as he appeared specially that he had any further interest in the matter. His appearance discloses his interest in the matter, and his special appearance precludes all other matters. These are the characteristics of a special appearance. In fact such appearance disclaims...
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