Jasperson v. Jacobson

• Decision Date: 29 May 1947
• Docket Number: No. 34349.,34349.
• Citation: 27 N.W.2d 788,224 Minn. 76
• Parties: JASPERSON v. JACOBSON et al.
• Court: Minnesota Supreme Court

27 N.W.2d 788

224 Minn. 76

JASPERSON v. JACOBSON et al.

No. 34349.

Supreme Court of Minnesota.

May 29, 1947.

Appeal from District Court, Hennepin County; Wm. A. Anderson, Judge.

Action by Herbert M. Jasperson, by Mabel L. Drew, his guardian, against David Jacobson and another to recover possession of residential premises and for cancellation of certain receipts purporting to evidence the sale of premises by plaintiff to defendants. From an order striking out the defendants' answer as sham and from judgment entered pursuant to such order, the defendants appeal.

Reversed.

Alfred A. Donaghue and Mart M. Monaghan, both of Minneapolis, for appellants.

Walter C. Boland, of Minneapolis, for respondent.

MATSON, Justice.

Defendants appeal from an order striking their answer as sham and from the judgment entered pursuant to such order in an action brought by plaintiff, through his guardian to recover possession of his residential premises located in Hennepin county and for the cancellation of certain receipts purporting to evidence a sale of said premises by plaintiff to defendants.

Mabel L. Drew, plaintiff's sister, on April 16, 1946, executed and filed with the clerk of the Hennepin county probate court a petition to have her brother, the plaintiff herein, adjudged an incompetent and asking that she be appointed general guardian of his person and estate. On the following day, April 17, she filed a certified copy of such petition in the office of the register of deeds for said county pursuant to Minn.St. 1945 and M.S.A. § 525.543, which provides:

"After the filing of the petition, a certified copy thereof may be filed for record in the office of the register of deeds of any county in which any real estate owned by the ward is situated and if a resident of this state, in the county of his residence. If a guardian be appointed on such petition, all contracts except for necessaries, and all transfers of real or personal property made by the ward after such filing and before the termination of the guardianship shall be void." (Italics supplied.)

An order of the probate court, dated April 16, 1946, providing for a hearing on the aforesaid petition on May 8, was served on plaintiff by leaving a true and correct copy thereof at his house of usual abode with a person of suitable age and discretion then residing therein. No one appeared either in support of or in opposition to the petition at the hearing on May 8, and as a result the matter was stricken from the court calendar.

Before any further steps were taken in the guardianship proceedings, plaintiff on May 14, 1946, purported to sell, and to deliver possession of, the above premises to defendants for $5,000, and in evidence thereof issued a written receipt acknowledging a down payment of $50. On May 16, 1946, and again on May 18, plaintiff issued receipts acknowledging further payments on the purchase price in the respective sums of $325 and $33. Defendants took immediate possession of the premises.

Thereafter, namely, on June 10, 1946, plaintiff's aforesaid sister, alleging that she had through inadvertence failed to appear at the hearing on May 8, petitioned the court for an order reinstating the guardianship petition for hearing on the court's calendar. Thereupon the probate court, under date of June 26, 1946, issued an order requiring plaintiff to show cause before the court on July 11 why said petition for guardianship should not be reinstated for hearing forthwith. This order to show cause was served on plaintiff personally on June 28. Pursuant to the hearing on July 11, the court made an order appointing the sister as guardian. This order specifically recited that the sister had appeared in support of the guardianship petition and that no one had appeared in opposition thereto. Letters of guardianship were issued as of July 18, 1946.

Subsequent to the foregoing proceedings, plaintiff, through his guardian, brought this action for cancellation of the receipts and for recovery of possession of the premises, and in his complaint alleged the filing with the register of deeds of a verified copy of the guardianship petition, the appointment of a guardian pursuant to said petition, and further alleged that the execution of the aforesaid receipts evidencing a sale of the premises had been fraudulently obtained by defendants at a time when plaintiff was mentally incompetent and unable to understand the nature of his acts, and that the possession of the premises had also been obtained by fraud. By their joint answer, defendants denied generally the allegations of the complaint and in addition specifically alleged the purchase of the premises and their willingness to pay the entire balance of the sale price by making a deposit thereof with the court. Plaintiff upon the pleadings and records on file, together with certain affidavits establishing the facts hereinbefore recited, made a motion to have the answer stricken as sham and for entry of judgment. This motion was granted, and judgment was ordered as prayed, except as to certain damages which are not here material. In its memorandum, the trial court expressed its opinion that the purchase-and-sale transaction was necessarily void under § 525.543, above quoted, in that the sale took place after the filing with the register of deeds of a verified copy of the guardianship petition and pursuant to which petition a guardian was thereafter appointed. The trial court expressed the view that the probate court had full jurisdiction upon the filing of the guardianship petition to appoint a guardian, even though the personal service upon the alleged incompetent as provided by Minn. St.1945 and M.S.A. § 525.55, might be defective.

1. An answer is sham when it is clearly and indisputably false and tenders no real issue. Upon a motion to strike an answer as sham, the duty of the court is to determine whether there is an issue to try and not to try the issue. Zinsmaster Baking Co. v. Commander Milling Co., 200 Minn. 128, 273 N.W. 673; 2 Pirsig's Dunnell, Minn.P1. § 1169; 5 Dunnell, Dig. & Supp. § 7658. Defendants by their general denial have in form at least raised an issue as to whether a guardian was ever appointed pursuant to the petition filed with the probate court. Is the issue false or genuine? If the appointment is not subject to collateral attack, then, obviously, the purchase-and-sale transaction between plaintiff and defendants is void, and there is then in fact no issue to be tried. If, on the other hand, the jurisdiction of the probate court to appoint a guardian is subject to a successful collateral attack, defendants' general denial raised a genuine issue.

2. Does the filing of a petition for an adjudication of incompetency and the appointment of a guardian, without the service of notice upon the alleged incompetent, confer jurisdiction for the valid appointment of a guardian? Minn.Const. art. 6, § 7, provides that "A probate court shall have jurisdiction over the estates of deceased persons and persons under guardianship * * *." The word "estates" is used only with reference to deceased persons, so that the proper reading of the constitutional provision is that a probate court shall have jurisdiction over the estates of deceased persons, and over persons under guardianship. A general jurisdiction over the subject of guardianship is thereby conferred. Jacobs v. Fouse, 23 Minn. 51; State ex rel. Chesley v. Wilcox, 24 Minn. 143, 147, 148; State ex rel. Martin v. Ueland, 30 Minn. 277, 15 N.W. 245. Obviously, there is a difference in the nature of the jurisdiction granted over the estates of deceased persons and that conferred over the subject of guardianship. The former is exercised through proceedings in rem (Fridley v. Farmers' & Mechanics' Sav. Bank, 136 Minn. 333, 336, 337, 162 N.W. 454, 455, L.R.A. 1917 E, 544), whereas the latter (which involves both rights in rem and rights in personam) is, with respect to original proceedings for the appointment of a guardian, primarily exercised through proceedings in personam. McCormick v. Blaine, 345 Ill. 461, 178 N.E. 195, 77 A.L.R. 1215, with annotation at page 1227.

"* * * A judgment in rem may be briefly defined as one founded on a proceeding instituted, not primarily against the person but against or upon some thing or subject-matter the status or condition of which is to be determined. Such judgment is one affecting the status of the res. A proceeding in personam is a proceeding against the person. It involves his personal rights, and may involve his right to specific property or the exercise of the ownership of such property, but it is based on jurisdiction of his person." (Italics supplied.) McCormick v. Blaine, 345 Ill. 465, 178 N.E. 197, 77 A.L.R. 1215.¹

3. If we keep in mind the fundamental distinction between a jurisdiction in rem and a jurisdiction in personam, it becomes obvious that principles and decisions governing the acquirement of the former are not necessarily controlling as to the latter. Although the filing of a proper petition for the administration of a decedent's estate, without the giving of notice, confers jurisdiction over the estate or the res (In re Estate of Barlow, 152 Minn. 249, 188 N.W 282), it does not follow that merely filing a petition in initial guardianship proceedings, without notice, gives the court jurisdiction over the person of an alleged incompetent. It must be borne in mind that there is a difference between proceedings dealing with a status once established and proceedings to establish such a status. We are here concerned with the nature and the acquirement of jurisdiction in original proceedings for the creation of a guardianship status, and not with the nature and exercise of jurisdiction over such status after it has once been established.² The condition or status of the alleged incompetent is not conceded, but is the main issue to be tried, and this issue is tried with the presumption, obtaining...