Nye v. Swan

• Decision Date: 26 December 1889
• Citation: 44 N.W. 9,42 Minn. 243
• Parties: NYE v SWAN ET AL.
• Court: Minnesota Supreme Court

42 Minn. 243

44 N.W. 9

NYEvSWAN ET AL.

Supreme Court of Minnesota.

Dec. 26, 1889.

(Syllabus by the Court.)

1. The presumption of jurisdiction supporting the judgment of a court of general jurisdiction is not overcome merely by the absence from the judgment roll of the evidence showing that jurisdiction had been acquired.

2. Non-resident defendants, upon whom summons was served by publication, and who, having employed an attorney to defend, suffered default by reason of the sickness of the attorney, held not chargeable with laches, and entitled, as a matter of right, to be allowed to interpose their defense.

Appeal from district court, St. Louis county; STEARNS, Judge.

R. R. Briggs, for appellant.

White, Shannon & Reynolds, for respondents.

DICKINSON, J.

Upon the filing of an affidavit, in accordance with the statute, alleging that the affiant believed that the defendants were non-residents of the state of Minnesota, and could not be found therein, and that copies of the summons had been mailed to the defendants at their place of residence, the summons was published as authorized by statute. After the completion of the publication, and on the 13th of February, 1889, upon proof of the defendants' default, the cause was heard by the court, and judgment rendered in favor of the plaintiff. About three weeks later the defendants gave notice by their attorneys of a motion to be made to set aside the judgment, and for leave to interpose an answer in the cause. Upon the hearing of this motion (before another judge than the one upon whose findings and order the judgment had been rendered) the relief sought by the defendants was granted, and from that order this appeal was taken by the plaintiff. It may be conceded that one of the grounds assigned by the court as a reason for granting the motion to vacate the judgment would not have justified the order. The reason here referred to is that the judgment had been rendered without jurisdiction, because there had been no return of the sheriff that the defendants could not be found in his county. Concerning this it is enough to say that this defect, granting it to be jurisdictional, was not shown, and the presumption that the court had jurisdiction was not overcome. The mere fact that no such return was found in the judgment roll would not avail. Herrick v. Butler, 30 Minn. 156,14 N. W. Rep. 794. This is a different question from that decided in Barber v. Morris, 37 Minn. 194,33 N. W. Rep. 559. But...