Nw. Loan & Banking Co. v. Jonasen

• Decision Date: 02 March 1900
• Citation: 82 N.W. 94,12 S.D. 618
• Parties: NORTHWESTERN LOAN & BANKING CO. v. JONASEN et al.
• Court: South Dakota Supreme Court

12 S.D. 618

82 N.W. 94

NORTHWESTERN LOAN & BANKING CO.

v.JONASEN et al.

Supreme Court of South Dakota.

March 2, 1900.

On rehearing. Overruled.

For former opinion, see 79 N. W. 840.

CORSON, J.

This case comes before us on a petition for rehearing. It was decided at a former term of this court, and is reported in 79 N. W. 840. The petition for rehearing is based upon the ground that this court assumed in its opinion facts which are not in the record, in that it says: “That the statutory notice to quit was given, and that respondents remained in possession after the execution and delivery of the deed to appellant based upon regular mortgage foreclosure proceedings and under power of sale, appears upon the face of the records.” The respondents contend that this statement is incorrect, for the reason that no notice to quit was offered or received in evidence on the trial of this case in the circuit court, and that the bill of exceptions does not show any such offer on the part of plaintiff and appellant. It is true, as contended by counsel, that no notice to quit, as required by section 6073, Comp. Laws, was offered or received in evidence, but, in our view of the case, it was not necessary for the plaintiff and appellant to make such proof on the trial in the circuit court, for the reason that the notice to quit served in this case was made a part of plaintiff's complaint in the justice's court, and properly constituted a part of the records of the case. We are of the opinion that under the provisions of section 6074 the notice to quit is a jurisdictional paper, and must, with proper proof of service, be filed with the justice at the time the proceedings are instituted. That section provides: “In all cases arising under subdivisions 4, 5, and 6 of the preceding section three days' notice to quit must be given *** before proceedings can be instituted, and may be served and returned in like manner as a summons is served and returned.” It will thus be seen that the service of the notice to quit constitutes a condition precedent to the right to institute proceedings. It was necessary, therefore, that the notice to quit should be served, returned, and filed with the justice before he was authorized to issue a summons in the action. When, therefore, the notice to quit was so filed authorizing the justice to take jurisdiction of the case, it became a part of the records of the case in his office, and continued as part of the records in the...