Mueller v. Reimer
| Citation | 48 N.W. 1120,46 Minn. 314 |
| Parties | Jacob B. Mueller and another v. Bernhard Reimer |
| Decision Date | 08 June 1891 |
| Court | Supreme Court of Minnesota (US) |
In 1875, Jacob B. Mueller and John Heinrich brought suit in the district court for Hennepin county against Bernhard Reimer (a nonresident,) to recover $ 100, and caused a writ of attachment to be issued and levied on real estate of Reimer in Minneapolis, and the summons to be published. Reimer did not appear, judgment was rendered and docketed against him on July 24, 1876, and on September 23, 1876, the attached real estate was sold on execution, issued on the judgment, to the judgment creditors, who, in 1884, (no redemption having been made,) conveyed to Stanford Newel. Reimer died July 9, 1888. Thereafter an action was brought in the same court, by Annie Reimer, his widow, and Wilhelmina Zieger, who had succeeded to his entire estate, to determine the adverse claim of Newel to the real estate, which was vacant and unoccupied. Pending such action the plaintiffs therein moved that the judgment of July 24, 1876, be set aside as void because of defects in the affidavit and writ of attachment and in the affidavit for publication of the summons, by reason of which, as claimed the court never acquired jurisdiction. The motion was opposed by Newel, and was denied by Lochren, J., and the moving parties appealed.
Order affirmed.
John C Judge, Sawyer & Sawyer, and Selden Bacon, for appellants.
Daniel Fish, for respondent.
We think that a judgment absolutely void for want of jurisdiction appearing on its face, may be set aside on the motion of any person who, although not a party to the action has an interest in the property upon which it is a cloud. Such a motion is not, strictly speaking, a proceeding in the action, but an application to have the records purged of an unauthorized and illegal entry. Hervey v Edmunds, 68 N.C. 243; Blodget v. Blodget, 42 How. Pr. 19; Mills v. Dickson, 6 Rich. Law 487; Milnor v. Milnor, 9 N.J.L. 93; Hunter v. Cleveland Stove Co., 31 Minn. 505, 511, (18 N.W. 645.) But such a practice is liable to encourage the intermeddling of strangers, and is subject to the possible danger of affecting the rights of parties not before the court, and therefore to be indulged in very cautiously. Moreover, one not a party to the action is not entitled as a matter of right to such relief. The granting of it is a matter wholly within the sound discretion...
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