Minneapolis Savings & Loan Association v. Eugene C.

• Court: Minnesota Supreme Court
• Writing for the Court: JULIUS J. OLSON, JUSTICE.
• Citation: Minneapolis Savings & Loan Association v. Eugene C., 270 N.W. 148, 198 Minn. 420 (Minn. 1936)
• Decision Date: 11 December 1936
• Docket Number: 30,955
• Parties: MINNEAPOLIS SAVINGS & LOAN ASSOCIATION v. EUGENE C. (ALSO KNOWN AS EUGENE O.) KING

270 N.W. 148

198 Minn. 420

MINNEAPOLIS SAVINGS & LOAN ASSOCIATION v. EUGENE C. (ALSO KNOWN AS EUGENE O.) KING

No. 30,955

Supreme Court of Minnesota

December 11, 1936

Action of unlawful detainer in the municipal court of St. Paul Ramsey county, wherein defendant appealed from a judgment of restitution, Clayton Parks, Judge. Affirmed.

SYLLABUS

Justice of the peace -- appeal from justice court -- waiver of lack of jurisdiction.

1. Where defendant appeals from a judgment rendered by a justice court to a superior cour for trial de novo, that is to say, upon questions of both law and fact, such appeal constitutes a general appearance in the action and amounts to a waiver of any previous want of jurisdiction of defendant's person and a consent that the action may be tried on its merits.

Justice of the peace -- action of unlawful detainer -- removal to district court.

2. In an action in justice court under the unlawful detainer statute (2 Mason Minn. St. 1927, § 9149), such cause is not removable to the district court on the ground that title to the real estate is involved unless and until such title comes in issue on the evidence presented in that court.

Unlawful detainer -- judgment of restitution properly ordered.

3. Plaintiff was, upon the record here presented, entitled to judgment of restitution.

Thomas J. Nash, for appellant.

Worth K. Rice, for respondent.

OPINION

JULIUS J. OLSON, JUSTICE.

Defendant appeals from a judgment awarding plaintiff restitution of certain premises in St. Paul, the proceedings had being pursuant to and in conformity with 2 Mason Minn. St. 1927 § 9149, et seq.

In June, 1933, plaintiff became the purchaser at a mortgage foreclosure sale of the involved premises. Within the statutory year for redemption, defendant, owner of the equity of redemption and the mortgagor in the foreclosed instrument, applied for and was granted an extension of time within which to redeem. Later, and prior to May 1, 1935, he further applied for and was granted an additional extension of time. These extensions were secured and had pursuant to the mortgage moratorium acts of 1933 and 1935. The later order required defendant to pay to plaintiff $30 per month, the first payment to be made June 1, 1935. Defendant wholly failed to meet the requirements of that order. Pursuant to the moratorium act, plaintiff proceeded to secure from the court an order determining such default and terminating the moratorium, with the object in view of securing possession of the foreclosed premises. On September 7, 1935, the court found the claimed defaults to exist and entered its order to that effect. This order was duly served upon the attorney who had appeared for defendant in these proceedings. The attorney promptly notified defendant and forwarded the notice to him. That order has never been attacked, and its validity is not questioned. Defendant refused to surrender possession. In December plaintiff proceeded with the present action to recover possession. Defendant was elusive, and personal service, although attempted, did not succeed. Accordingly, plaintiff proceeded by published summons pursuant to the provisions of 2 Mason Minn. St. 1927, § 9152. On the return day and at the appointed hour, December 24, the parties in open court agreed to an adjournment until a later hour that day. Then for the first time defendant raised the issue of lack of jurisdiction and filed several affidavits indicating that he was in fact a resident of the premises involved in the proceedings. It is sufficient for our purpose to say that there was a sharp conflict in the claims made and in the proofs submitted respecting this issue.

The justice overruled defendant's special appearance, whereupon defendant pleaded "not guilty." The matter was then adjourned until the 27th. On the adjourned date defendant filed an affidavit of prejudice. The justice thereupon transferred the cause to another justice to be heard December 31. When the new justice came into the case and on the date set for the trial, defendant asked to be relieved of his plea of not guilty and to enter another special appearance upon the same grounds as theretofore had been urged before the former justice. This motion was denied. The case was thereafter tried and judgment of restitution entered. Thereupon defendant appealed to the municipal court upon questions of both law and fact, and there the case was heard de novo. There also defendant sought to renew the jurisdictional question. The court held against him and on the merits found for plaintiff. This is the judgment from which the present appeal was taken.

Two questions are involved: (1) Whether the court had jurisdiction of defendant, and (2) whether the court should have certified the case to the district court on the ground that...