Ordean v. Grannis
| Decision Date | 07 June 1912 |
| Docket Number | 17,552 - (120) |
| Parties | ALBERT L. ORDEAN and Others v. HENRY J. GRANNIS and Another |
| Court | Minnesota Supreme Court |
On Reagrument July 5, 1912.
Action in the district court for St. Louis county by Albert L Ordean, Margaret Sullivan, Alfred Jaques, Theodore J. Hudson John G. Williams, Christiana Alstead, Alice E. Butchart, as administratrix and trustee under the last will of Ida Michaud, deceased, Frank Woodman, and Oliver Iron Mining Company against Henry J. Grannis and Charles K. Dickerman, to determine adverse claims to certain vacant and unoccupied real estate.
The separate answer of defendant Grannis, as a counterclaim alleged that he had a line upon an undivided one-fifth interest in the premises, under the sale on execution upon the Dickerman judgment against the Elder interest, as narrated in the opinion on page 122, infra; and further alleged that, independently of the title so acquired under that sale on execution, he was the owner of an undivided one-fifth interest in the land. The separate answer of defendant Dickerman likewise interposed a counterclaim asserting that he had a similar lien upon an undivided one-fifth of the premises, as part owner of the Dickerman judgment.
The reply to each answer alleged that on May 5, 1899, in an action by George A. Elder against the Messaba Land Company, Charles E. Dickerman and others, a judgment of partition was entered decreeing that the land could not be partitioned, and ordering that it be sold to the highest bidder and the proceeds distributed among the defendants in the action, according to their respective rights, and appointing a referee to make a sale; that a sale was made and confirmed by order of court; that subsequently plaintiffs other than the Oliver Iron Mining Company became the owners in fee simple by mesne conveyances from the purchaser at said sale.
The plaintiffs served a supplemental complaint which alleged that the action was brought for the purpose, among others, of setting aside a certain sale of an undivided one-fifth interest in the land made on February 8, 1910, on execution upon a judgment docketed February 9, 1900, in favor of Charles E. Dickerman and against the Syndicate Investment Company and others for the sum of $23,095.34; that plaintiffs had on February 8, 1911, deposited with the sheriff of the county the sum of $16,059, the amount necessary to redeem from said execution sale, together with a bond conditioned to pay all interest that might accrue until final redemption, and prayed for a determination of the validity of the last mentioned execution sale. The answer to the supplemental complaint alleged that plaintiffs did not then have the right to redeem the land from the execution sale last mentioned, and further alleged that on February 8, 1911, the plaintiffs were not entitled to avail themselves of the provisions of R.L. 1905, § 4315, and that the action was not brought to set aside an execution sale of land within the meaning of that section.
The case was tried before Cant, J., who made findings as stated in the opinion, and as conclusion of law found that plaintiffs other than the Oliver Iron Mining Company were the owners in fee of an undivided four-fifths of the land, subject to a mining lease executed by plaintiffs other than the Oliver Iron Mining Company in favor of that company, dated November 8, 1902, for fifty years from October 1, 1902, which covered the whole of the premises; that defendant Grannis was the owner in fee simple of an undivided one-fifth of the lands; that the judgment docketed on February 9, 1900, in favor of Charles E. Dickerman and against George A. Elder, was not a lien upon the interest of George A. Elder in the land described; that the execution sale thereunder was invalid and void, and that plaintiffs were entitled to receive from the sheriff of St. Louis county the money and bond deposited with the sheriff under section 4315, R.L. 1905.
From that part of the judgment which adjudged plaintiffs to be the owners of an undivided four-fifths and that defendant Grannis was the owner of an undivided one-fifth of the premises described, and that the mining lease of plaintiff was not a lien upon said one-fifth, plaintiffs appealed. From that part of the judgment which adjudged plaintiffs other than the Oliver Iron Mining Company to be the owners of an undivided four-fifths of the premises, subject to the mining lease, and from that part of the judgment which adjudged that the judgment docketed on February 9, 1900, against George A. Elder was not a lien upon his interest in the land, and that the execution sale thereunder was invalid, and that plaintiffs were entitled to receive the money and bond deposited with the sheriff, defendants appealed. Reversed with directions as to plaintiffs. Affirmed as to defendants.
Judgment by default -- collateral attack -- publication of summons.
Where a summons is served by publication, and there is an error in the name of a defendant, though the true name and the name given be not strictly idem sonans, if the names when printed look substantially alike to the eye, and it appears that neither defendant nor those who knew him could be misled by the difference, judgment by default rendered on such service is valid as against collateral attack.
Name of defendant -- appearance in print.
Applying this rule, it is held, where the true name of defendant was "Albert B. Geilfuss, assignee," and the name as published was "Albert Guilfuss, assignee," the difference between the names, each considered as a whole, was not such a defect as rendered the judgment void.
Action for partition -- collateral attack on judgment.
Where a court has jurisdiction of the subject-matter and the parties, and renders a judgment which it had jurisdiction to enter if the facts pleaded and proved warranted it, such judgment, though erroneous under the pleadings and proof in the case, is not void, and cannot be attacked collaterally. This rule applied to a decree of sale in a partition action, though it may have been erroneous under G.S. 1894, § 5782, because the liens on the property exceeded in amount its value.
Jaques & Hudson, John G. Williams, and William Elder, for plaintiffs.
Henry J. Grannis, for defendants.
Plaintiffs brought this action to determine adverse claims to real estate in St. Louis county. The trial resulted in a judgment to the effect that plaintiffs were the owners of an undivided four-fifths interest in the land, and defendant Grannis the owner of an undivided one-fifth interest. Plaintiffs appealed from this judgment, as did also defendants Grannis and Dickerman.
There is no controversy over the facts, which are fully stated in the findings, and may be briefly stated as follows:
November 8, 1895, George A. Elder owned an undivided one-fifth interest in the land, Mesaba Land Company an undivided one-fifth, John McKinley an undivided one-fifth, and Poca Iron Company an undivided two-fifths. On or prior to this date there were docketed ten judgments against George A. Elder, and each was a lien upon his interest in the land. On or prior to November 8, 1895, there were docketed some forty-seven judgments against John McKinley, and each was a lien upon McKinley's undivided interest in the land. Among the judgments against McKinley were two rendered in favor of Albert B. Geilfuss, assignee -- one for $2,854.02, which was docketed in the judgment lien docket as in favor of Albert Geilfuss, assignee; the other for $2,125.60, which was docketed as in favor of Albert B. Geilfuss, assignee.
November 8, 1895, George A. Elder commenced a partition suit against the other owners of undivided interests in the land. In this action all of the judgment creditors of Elder and of McKinley were made defendants, except that the name Albert Geilfuss, assignee, or the name Albert B. Geilfuss, assignee, did not appear in the summons or other files in the action. The summons named Albert "Guilfuss," assignee, as a defendant. There was no personal service of the summons upon Albert B. Geilfuss, assignee, who was the real owner of the two judgments and resided in Milwaukee, Wisconsin. The summons was duly served by publication upon the defendant designated as Albert Guilfuss, assignee, and a copy of the summons was addressed to said name at Milwaukee, Wisconsin. Neither "Geilfuss" nor "Guilfuss" appeared in the action.
The complaint in the partition action described the interests of the parties and the liens on their interests, including the numerous judgments, and asked for a partition of the lands, or, in case that could not be done, for a sale under the decree of the court. The trial resulted in a decision and judgment that the lands could not be divided, and ordering them sold by a referee to the highest bidder, the proceeds to be divided among the defendants according to their respective rights under the law. Thereafter the sale was made to August Schupp for $6,700, and duly confirmed by the court, and a deed executed and delivered to the purchaser. Plaintiff's title to the lands is derived by mesne conveyances from Schupp.
The judgment of Geilfuss, assignee, against McKinley for $2,854.02, was in 1901 assigned to F. L. Buell. Thereafter execution was issued on this judgment and levied on McKinley's one-fifth interest in the lands, which was sold to Buell on the execution sale. Defendant Grannis succeeded by mesne conveyances to whatever title was acquired by Buell under this execution sale, and claims title to an undivided one-fifth interest in the lands by reason thereof. This claim the trial court sustained.
In 1900 Charles E. Dickerman recovered a judgment for $23,095.34 against George A. Elder in the...
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