Hotchkiss v. Cutting

• Decision Date: 01 January 1869
• Parties: ANDREW HOTCHKISS v. EUNICE CUTTING.
• Court: Minnesota Supreme Court

Page 408

14 Minn. 408

ANDREW HOTCHKISS

v. EUNICE CUTTING.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Olmsted county.

Judgment below was for defendant.

Jones & Butler, for appellant, cited:

E. A. McMahon, for respondent, cited:

McMILLAN, J.

This is an action to recover the possession of real estate. Both parties claim title from a common source, Ezra D. Cooper, who, it is admitted, was the owner in fee of the premises on the thirty-first of July, 1857, on which day, the evidence shows, he executed a mortgage on the premises to one Solomon Grimes, to secure the payment of a note of even date for $400, with interest, etc., 12 months after the date thereof. The mortgage was duly recorded on the same day. Default having been made by the mortgagor in payment of the mortgage debt, Grimes foreclosed the mortgage by action in chancery, in which Cooper and wife, Palmer L Hadley and Marinda Hadley, his wife, Oscar Ennis, and H. J. Farr were defendants, and such proceedings were had therein that on the twentieth of July, 1860, the period for redemption having expired, a sheriff's deed for the premises was executed to Grimes, who was the purchaser at the foreclosure sale, which was duly recorded the same day. On the twenty-ninth of March, 1861, Grimes conveyed to Rodney Whitney, who, with his wife, conveyed to the defendant, Eunice Cutting, on the second of February, 1863. On the fourth of November, 1857, subsequent to the mortgage, Cooper and wife executed a deed of the premises to Amos D. Palmer; on the thirteenth of April, 1858, Palmer conveyed to Marinda Hadley, who conveyed the premises to the plaintiff, Hotchkiss, on the fifth of April, 1865. The deed from Cooper and wife to Palmer having been executed subsequent to the mortgage to Grimes, if the foreclosure proceedings are valid, the defendant has the paramount title.

The validity of these proceedings is the question to be determined in the case. The defendant, having admitted the conveyances under which the plaintiff claims title, offered in evidence upon the trial the judgment roll in the foreclosure action, to the admission of which the plaintiff objected as immaterial, irrelevant, and incompetent. The court overruled the objection, and the plaintiff excepted.

The "judgment roll" was indorsed, "Filed May 4, 1859, C. C. Jones, clerk," and embraced the summons and complaint, each purporting to be signed "S. Grimes, Atty. in person;" affidavits of C. C. Wilson and Henry Messersmith, who served the summons on the defendants of the fact of service, and that no answer, demurrer, or appearance had been made by either of defendants; the judgment or decree, signed by the judge of the district court; together with two affidavits — one by Solomon Grimes, the plaintiff, made on the sixth day of March, 1868, and one by Ezra D. Cooper, the mortgagor, and principal defendant in the action, made on the seventh of May, 1868, and filed and attached, by leave of court, to the judgment roll, with the order granting such leave, June 13, 1868.

The first point urged by the appellant in support of his objection to the admissibility of the judgment roll in evidence is that the plaintiff's affidavit (of March 6, 1868) shows that he did not subscribe the summons; that therefore the summons and subsequent proceedings were void, and without jurisdiction. The signature was in writing, and, it appears from the affidavit referred to, was made by Messersmith, the agent of the plaintiff, in his presence and by his express direction. This is a sufficient subscription by the plaintiff. It is certainly as good as the writing of a firm name of attorneys made by one member of the firm, and it cannot be doubted that such a subscription of a summons would be valid.

The case of Ames v. Schurmeier, 9 Minn. 221, (Gil. 206,) was the case of a printed signature, and determines only that a printed signature is not sufficient. Whatever may be the effect of the decision in that case, it is not in point here.

The summons, subscribed as above stated, required the defendants to serve a copy of their answer upon the "subscriber at his office in the city of Rochester, Minnesota." It designates the place at which the service of the answer was required to be made by the defendants with sufficient certainty; and the language "in case you fail to answer said complaint within the time aforesaid application will be made to the court for the relief demanded in the complaint," is a...