Inglee v. Welles

• Decision Date: 03 May 1893
• Citation: 53 Minn. 197,55 N.W. 117
• Parties: INGLEE v WELLES ET AL.
• Court: Minnesota Supreme Court

53 Minn. 197

55 N.W. 117

INGLEEvWELLES ET AL.

Supreme Court of Minnesota.

May 3, 1893.

(Syllabus by the Court.)

1. Under Laws 1881, (Ex. Sess.) c. 81, the fact that the named defendant was dead when the action was commenced will not prevent the court from acquiring jurisdiction to determine the rights of “other persons, or parties unknown,” claiming an interest in the real estate described in the complaint.

2. Other objections to the affidavit for publication held not well taken.

Appeal from district court, Hennepin county; Canty, Judge.

Appeal by Wilbur B. Godding and another from an order denying their motion to vacate a judgment heretofore entered in this action on October 29, 1887. Affirmed.

The action was brought to determine the adverse claims of Henry T. Welles, Delia Godding, “also all other persons or parties unknown,” to certain real estate in Hennepin county. As to Welles, the action was dismissed. Godding and the unknown defendants were served by publication. The affidavit to obtain the order for publication stated “*** that said defendants, and all defendants named in the title of this action, save and except Henry T. Welles, as affiant is informed and believes, are not residents of the state of Minnesota; that the place of residence of them, and all of them, save Henry T. Welles, is unknown to affiant and to his client, the plaintiff in this action; that said action is brought by plaintiff under the provisions of section 2, c. 75, of the Statutes of 1878, and the acts amendatory thereof, for the purpose of determining the adverse claims of said defendants in and to the property described in the complaint, to wit, lot twelve, (12,) in block twelve, (12,) in Lennoon & Newell's addition to St. Anthony, in Hennepin county, Minnesota; *** that affiant has made due search for said defendants, but they, nor their place of residence, cannot be found, nor personal service of the summons herein had upon them. ***” The printer's affidavit filed in the action states “*** that the district court summons, a printed copy of which is hereto attached, ***” was duly published. No reference is made in the affidavit to publication of the notice of lis pendens, but a printed copy of a due notice of lis pendens, following the summons, appeared in the newspaper clipping attached to the affidavit, and referred to therein. The appellants are the nonresident heirs of defendant Delia W. Godding, who was dead at the time the action was...