Martin v. Parker

• Decision Date: 01 January 1999
• Parties: JOHN MARTIN and Wife v. BENJAMIN PARKER and Wife.
• Court: Minnesota Supreme Court

Page 1

14 Minn. 1

JOHN MARTIN and Wifev.

BENJAMIN PARKER and Wife.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Hennepin county, refusing to set aside a summons.

Atwater & Flandrau, for appellants.

J. B. Gilfillan, for respondents.

WILSON, C. J.

This is an action for the partition of real property under chapter 74 of the General Statutes. The summons is addressed "to the above-named defendants;" the names of the defendants being before stated in the title of the case. The complaint alleges:

"That the said plaintiff John Martin and the said defendant Benjamin Parker own, possess, and are seized in feesimple as tenants in common of the following-described land, real estate, and premises. * * * That the said plaintiff Jane B. Martin is the wife of said plaintiff John Martin, and as such has and claims an inchoate right of dower in and to the undivided half interest of the said plaintiff John Martin in said premises; that the said defendant Hannah Parker is the wife of the said defendant Benjamin Parker, and as such has and claims an inchoate right of dower in and to the said undivided half interest of the said defendant Benjamin Parker in said premises. The said property is of the cash value of five thousand (5,000) dollars; that the above-named are the only persons having or claiming any interest in or to said premises, or any part thereof." The counsel for the defendants moved the court for an order setting aside the summons, on the ground that it "is not addressed by name to all the owners and lienholders who are known, and generally to all persons unknown, having or claiming an interest in the property described in the complaint herein."

The court denied the motion, and the defendants appealed. Sections 2 and 3 of the chapter under which the action is brought provide:

"Sec. 2. The summons shall be addressed by name to all the owners and lienholders who are known, and generally to all persons unknown, having or claiming an interest in the property."

"Sec. 3. The interest of all persons in the property, whether by the way of ownership or lien, and whether such persons are known or unknown, shall be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if any one or more of the parties, or the share or quantity of interest of any of the parties, is unknown to the plaintiff, or uncertain or contingent, or the ownership of the inheritance depends upon executory...