Holmes v. Conter
| Decision Date | 15 May 1942 |
| Docket Number | 33020. |
| Citation | 4 N.W.2d 106,212 Minn. 394 |
| Parties | HOLMES v. CONTER et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. The sole issue for trial was one of fact, viz: whether defendants were served personally with the notice of the expiration of the time of redemption on July 26, 1937, at St Paul, Minnesota, as returned thereon by the deputy sheriff of Ramsey county. The finding that it was so served is sustained by the record.
2. Plaintiff called defendants' attorney in the first trial and, over the objecton that it was immaterial, irrelevant and privileged, he was permitted to answer that he did not have in his possession a certain sales slip, dated July 26, 1937 and issued to one of defendants. The ruling was right.
Clifford W. Gardner, of St. Paul, for appellants.
R Edison Barr, of St. Paul, for respondent.
Action to quiet title to a lot in the city of St. Paul.
The action was tried to the late Judge O'Brien who made and filed findings upon which judgment was entered in favor of plaintiff. A motion made by defendants, after Judge O'Brien's death, to vacate the judgment and grant a new trial on newly discovered evidence and in the interest of justice was granted by Judge Parks, and his order sustained on appeal to this court. Holmes v. Conter 209 Minn. 144, 295 N.W. 649. The new trial before Judge McNally resulted in plaintiff's favor. Motions for amended findings or a new trial were denied and from the order denying a new trial defendants appeal.
Defendants' counsel concedes that the burden is on him to overcome the return of the deputy sheriff 'by evidence which has been proven to be 'clear and satisfactory." The return is not conclusive. Grossman v. Lockedell & Son, 184 Minn. 446, 238 N.W. 893. However, the return is by an official. Mason St.1927, § 2163, requires the sheriff of the county wherein the land is located to serve and make a return of service upon notice of the expiration of the time of redemption on lands sold for taxes. The sheriff's return of service, to be made on the notice and filed with the county auditor, is to be the basis upon which the auditor certifies that the time of redemption has expired, and the title has passed to the holder of the certificate of tax sale. It was stipulated that all the steps taken to eliminate the right of redemption were regular, except that defendants denied they were served and claimed that the sheriff's return was false.
The notice herein involved related to the tax sale of 1925, and the sum required to redeem was $35.91. The notice was turned over to deputy sheriff Perlman for service, who was a witness at the trial and testified that in the afternoon of July 26, 1937, he served the notice on defendants personally by handing to and leaving with each a true copy thereof; that he knew defendants; that he had served them with like notices before; that the service was made in their home, and that one of them asked what was wanted now; that they had recently paid over $500 in redemption of tax sales on the lot, and that he responded that they better see that the lot was not lost upon the tax. The sole fact decisive of this appeal is: Were defendants personally served, as shown by the return and testified to by Perlman?
The parties upon whose affidavits the former judgment was vacated and a new trial granted, and two or three others, were witnesses at this trial. We have closely scrutinized the record and are satisfied that he court's finding that defendants were personally served with notice is well sustained. It is not the province of an appellate court to demonstrate the correctness of a fact issue found by the trial court. The memorandum filed by that court clearly justifies his finding. We appreciate that the fact that these elderly...
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