McClymond v. Noble
| Decision Date | 08 November 1901 |
| Docket Number | 12,701,12,758 - (56,57) |
| Citation | 87 N.W. 838,84 Minn. 329 |
| Parties | LOUIS McCLYMOND v. DAVID P. NOBLE and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Traverse county to determine adverse claims to land in possession of plaintiff. Judgment by default was duly entered in favor of plaintiff. Thereafter Aaron T. Noble appeared specially and moved to vacate the judgment; and W. E. Harrington moved to open the judgment and for permission to defend. From separate orders, Flaherty, J. denying their respective motions, Aaron T. Noble and W. E Harrington severally appealed. Orders affirmed.
Adverse Claims.
In an action against unknown persons and parties to determine adverse claims to real estate, under G.S. 1894, § 5818, held:
Publication of Summons -- Order of Court.
1. No order of the court for the service of the summons by publication is necessary.
Jurisdiction of Court.
2. The fact that the named defendant, who appeared of record to have some interest in the land, was dead when the action was commenced, did not prevent the court from acquiring jurisdiction, nor did the fact that one of the unknown parties was at the time a resident of the state affect the jurisdiction of the court to adjudicate the state of the title to the land.
Motion to Vacate Judgment.
3. The trial court did not abuse its discretion in denying the motion of the grantee of such unknown party to vacate the judgment and permit him to answer.
A. J. Finnegan, for appellants.
F. W. Murphy and W. H. Townsend, for respondent.
This is an action to determine adverse claims to a tract of eighty acres of land in the county of Traverse, brought June 26, 1899, pursuant to the provisions of G.S. 1894, § 5818, against David P. Noble, the person who appeared by the record to have some interest in the land, and also against all other persons or parties unknown claiming any right, title, or interest therein or lien thereon. Notice of lis pendens was made and recorded in the office of the register of deeds of the proper county, and published with the summons in the action. An affidavit for the publication of the summons was duly made and filed, and the sheriff of the proper county made return upon the summons that none of the defendants could be found in his county, but no order for the publication of the summons was ever made by the court. Other than as stated, the summons was never served on any of the defendants. Judgment by default for the plaintiff was entered December 28, 1899.
On February 18, 1901, Aaron T. Noble, herein designated as the defendant, the sole heir at law of David P. Noble, appeared specially, and moved the trial court to vacate the judgment on the ground that the court had no jurisdiction to enter the same. Upon the hearing of the motion the following additional facts were established: David P. Noble died intestate in the state of Wisconsin, April 2, 1892, leaving him surviving, as his only heir at law and next of kin, the defendant, who for thirty years last past has resided in the city of Mankato, this state, but it did not appear that this fact was known to the plaintiff prior to the making of the motion. The defendant had no knowledge of this action until December 31, 1900. The trial court on February 23, 1901, by its order of that date, denied the motion, and the defendant appealed therefrom.
The first reason urged by the defendant why the court was without jurisdiction in the premises is that no order for the publication of the summons was ever made by the court. None was required, for this is an action against the party who appeared of record to have some title to the land, and also against all other persons or parties unknown claiming any interest therein, and the statute authorizing the action expressly provides that the service of the summons may be made by publication, as provided by law in case of nonresident defendants. In such a case no order of the court for the service of the summons by publication is or has for the last thirty years been necessary, unless otherwise expressly provided by law. G.S. 1894, § 5204; Easton v. Childs, 67 Minn. 242, 69 N.W. 903.
It is also urged that the court acquired no jurisdiction in this case because the only party indicated by his name in the summons, David P. Noble, had been dead nearly eight years when the action was commenced, and no jurisdiction to bind the interest of the defendant, his sole heir, could be acquired by the service of the summons by publication. The fact that the named defendant in the summons was dead when the action was commenced did not prevent ...
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