Murphy v. Missouri & Kansas Land & Loan Co.
| Decision Date | 12 December 1914 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
Opinion on Rehearing filed September 12, 1914.
From a judgment of the District Court of Logan County, Coffey, J plaintiffs appeal.
Modified and remanded.
Watson & Young, for appellants.
The court had jurisdiction over the persons of the five individual defendants. Due service had been made on each of them. They failed to answer, and a default judgment was duly entered against them. This judgment was vacated by the order of the court without notice and without hearing; without answer and without affidavit of merits, and without an order to show cause. This was error. Sargent v. Kindred, 5 N.D. 8, 63 N.W. 151; Wheeler v. Castor, 11 N.D. 347 61 L.R.A. 746, 92 N.W. 381; Freeman v. Wood, 11 N.D. 1, 88 N.W. 721; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 25, 84 N.W. 581; Fargo v. Keeney, 11 N.D. 484, 92 N.W. 836, 14 N.D. 419, 105 N.W. 92; Emmons County v. Thompson, 9 N.D. 598, 84 N.W. 385; Kirschner v. Kirschner, 7 N.D. 292, 75 N.W. 252; Gauthier v. Rusicka, 3 N.D. 1, 53 N.W. 80; Cline v. Duffy, 20 N.D. 525, 129 N.W. 75; Martinson v. Marzolf, 14 N.D. 301, 103 N.W. 937; Freeman v. Wood, 14 N.D. 95, 103 N.W. 392; Olson v. Mattison, 16 N.D. 231, 112 N.W. 994; Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491; Braseth v. Bottineau County, 13 N.D. 344, 100 N.W. 1082; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 27 L.R.A. (N.S.) 858, 126 N.W. 102; Hunt v. Swenson, 15 N.D. 512, 108 N.W. 41; Olson v. Sargent County, 15 N.D. 146, 107 N.W. 43; Colean Mfg. Co. v. Feckler, 16 N.D. 227, 112 N.W. 993; Garr, S. & Co. v. Collin, 15 N.D. 622, 110 N.W. 81; Williams v. Fairmount School Dist. 21 N.D. 198, 129 N.W. 1027; Racine-Sattley Mfg. Co. v. Pavlicek, 21 N.D. 222, 130 N.W. 228; Acme Harvester Co. v. Magill, 15 N.D. 116, 106 N.W. 563; Plano Mfg. Co. v. Doyle, 17 N.D. 386, 17 L.R.A. (N.S.) 606, 116 N.W. 529; Kitzman v. Minnesota Thresher Mfg. Co. 10 N.D. 26, 84 N.W. 585; Phelps v. McCullam, 10 N.D. 536, 88 N.W. 292; Naderhoff v. George Benz & Sons, 25 N.D. 165, 47 L.R.A. (N.S.) 853, 141 N.W. 501.
The plaintiffs' judgment by default was property,--their property. The order of the court wiped this out as to the five defendants, and this without notice, application, or hearing, and deprived plaintiffs of property without due process of law. Const. § 13; Const. 14th Amendment, § 1; Parsons v. Russell, 11 Mich. 120, 83 Am. Dec. 728; Clapp v. Houg, 12 N.D. 600, 65 L.R.A. 757, 102 Am. St. Rep. 589, 98 N.W. 710; Scott v. McNeal, 154 U.S. 34, 38 L.Ed. 896, 14 S.Ct. 1108; Bank of Columbia v. Okely, 4 Wheat. 235, 244, 4 L.Ed. 559, 561; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 233, 234, 41 L.Ed. 979, 983, 984, 17 S.Ct. 581; Ex parte Virginia, 100 U.S. 339, 346, 347, 25 L.Ed. 676, 679, 680, 3 Am. Crim. Rep. 547; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064; Gibson v. Mississippi, 162 U.S. 565, 40 L.Ed. 1075, 16 S.Ct. 904; Scott v. McNeal, 154 U.S. 34, 38 L.Ed. 896, 14 S.Ct. 1108; San Mateo County v. Southern P. R. Co. 8 Sawy. 238, 13 F. 722; Cooley, Const. Lim. pp. 504, 505 and notes; Blake v. McClung, 172 U.S. 239, 43 L.Ed. 432, 19 S.Ct. 165.
Where the charter of a corporation, or the general law under which it is organized, fixes the term for the existence of the corporation it will, upon the expiration of the term, become ipso facto dissolved. 2 Beach, Priv. Corp. § 780; Angell & A. Priv. Corp. 9th ed. 778, A, 195, 196, 779 A; 2 Cook, Corp. 6th ed. 637m, 638; State ex rel. Green v. Lawrence Bridge Co. 22 Kan. 438.
The attorneys had no right to appear for a client that did not exist. 4 Cyc. 953, 954 and cases cited; Judson v. Love, 35 Cal. 463; Cases cited in 5 Century Dig. "Attorney and client," 127.
The only claim made in this case was by a corporation that had ceased to exist, the other five defendants not having appeared or answered. Plaintiffs' dismissal was the exercise of a statutory right. The proceedings taken by the court after such dismissal were void. Allen v. Van, 1 Iowa 568; Burlington & M. R. Co. v. Sater, 1 Iowa 421; Ballinger v. Davis, 29 Iowa 512; St. John v. Hardwick, 17 Ind. 180; Miller v. Mans, 28 Ind. 194; Gordon v. Goodell, 34 Ill. 429; Ferguson v. Ingle, 38 Ore. 43, 62 P. 760; Deere & W. Co. v. Hinckley, 20 S.D. 359, 106 N.W. 138; Koerper v. St. Paul & N. P. R. Co. 40 Minn. 132, 41 N.W. 656; Minor v. Mechanics, 1 Pet. 46, 7 L.Ed. 47; Hancock Ditch Co. v. Bradford, 13 Cal. 637; Reed v. Calderwood, 22 Cal. 464; Dimick v. Deringer, 32 Cal. 488.
Andrew Miller and W. P. Costello, for respondents.
The issue in this case was limited to the legality of plaintiffs' tax deeds. The possession of the property was not alleged, claimed, or proved. The tax deeds under which plaintiffs base their title and claim are void. Youker v. Hobart, 17 N.D. 296, 115 N.W. 839; Brown v. Corbin, 40 Minn. 508, 42 N.W. 481 and cases cited.
The sale upon which the deeds were issued was advertised for a certain date, and sale had on a subsequent date. A tax deed which recites the time of sale as being different from the time fixed by law is void. Salmer v. Lathrop, 10 S.D. 216, 72 N.W. 570.
No newspaper had been properly designated for publication of the delinquent tax list. Such fact is shown by affirmative proof of no record of same. Cass County v. Security Improv. 7 N.D. 528, 75 N.W. 775; Griffin v. Denison Land Co. 18 N.D. 246, 119 N.W. 1041; Rev. Codes 1899, § 1259; Rev. Codes 1905, § 1259.
This is jurisdictional. Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227; Finlayson v. Peterson, 5 N.D. 587, 33 L.R.A. 532, 57 Am. St. Rep. 584, 67 N.W. 953.
The description was insufficient. Power v. Bowdle, 3 N.D. 107, 21 L.R.A. 328, 44 Am. St. Rep. 511, 54 N.W. 404; Wright v. Jones, 23 N.D. 191, 135 N.W. 1120.
The redemption notice was insufficient,--forty-two days, instead of ninety days, being given. Rev. Codes 1899, § 1289.
A proper notice of the expiration of the period of redemption is necessary to a valid tax deed. Blakemore v. Cooper, 15 N.D. 5, 4 L.R.A.(N.S.) 1074, 125 Am. St. Rep. 574, 106 N.W. 566.
The sheriff's return of service of notice was lacking, in that no diligence is shown. Campbell v. Coulston, 19 N.D. 645, 124 N.W. 689; Power v. Kitching, 10 N.D. 254, 88 Am. St. Rep. 691, 86 N.W. 737; Youker v. Hobart, 17 N.D. 300, 115 N.W. 839.
Plaintiffs having no interest themselves, they could not litigate defendant's claim. Morrill v. Douglass, 14 Kan. 293.
The plaintiff must recover upon the strength of his own title, and can take nothing by reason of defects in the defendant's claim. Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227; Wallace v. Swinton, 64 N.Y. 192; Youker v. Hobart, 17 N.D. 300, 115 N.W. 839.
If any right of appellants was wiped out by vacating the judgment, it was a mere abstract right which would not warrant relief. Equity will not lend its aid for the protection of abstract rights. 16 Cyc. 123, § 4; Hildreth v. James, 109 Cal. 299, 41 P. 1038; Woolworth v. Root, 40 F. 723.
The judgment vacated did not grant to plaintiffs any valuable right, and therefore the manner in which it was vacated will not be considered. They must show that a substantial right has been lost. Richman v. Wenaha Co. 74 Wash. 370, 133 P. 467; Hull v. Ely, 2 Abb. N.C. 440; Warden v. Fond du Lac County, 14 Wis. 618; 16 Cyc. 123, § 4; Martinson v. Marzolf, 14 N.D. 301, 103 N.W. 937.
No notice given that proof for a judgment would be made. Naderhoff v. George Benz & Sons, 25 N.D. 165, 47 L.R.A.(N.S.) 853, 141 N.W. 501.
The judgment was void because without proof of facts upon which to base it. Weeks v. Cranmer, 18 S.D. 441, 101 N.W. 32; Morrill v. Douglass, 14 Kan. 293; Amador Canal & Min. Co. v. Mitchell, 59 Cal. 168; Johnson v. Girdwood, 143 N.Y. 660, 39 N.E. 21.
The court would have the right to substitute the names of directors and managers of such corporation, for the corporation, before or after verdict. Eagle Chair Co. v. Kelsey, 23 Kan. 632; Root v. Sweeney, 12 S.D. 44, 80 N.W. 149.
Where plaintiff's title is declared bad, and another's title good, it is not material to plaintiff in whose name decree is entered. Woolworth v. Root, 40 F. 723.
The dismissal of an action can only be accomplished as the statute provides. In the case at bar the trial was in progress. Rev. Codes 1905, § 6998, Subdiv. 1.
Defendants were entitled to have their title quieted. Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227.
GOSS, J. BURKE, J., did not participate.
This is an equitable action brought to determine adverse claims to real estate. This opinion is written after a rehearing had. Substituted service of summons was made upon the five individual defendants and one corporation defendant in 1910 and all of them appeared in due time by their attorneys of record, who served written notice of appearance and demand for a copy of the complaint on behalf of all defendants. The individual defendants have never answered, and are in default of answer, but their attorneys of record appeared for them at all times during the progress of the trial. An original answer and counterclaim was served by the corporation, the Missouri & Kansas Land & Loan Company, which was held to have been served in time, on appeal to this court decided in 22 N.D. 336, 133 N.W. 913. Remittitur on that appeal left this court in January, 1912. A few days prior thereto, December 26, 1911, the twenty-year period of...
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