R. Lunschen v. Peterson
| Decision Date | 17 January 1913 |
| Docket Number | 17,794 - (142) |
| Citation | 139 N.W. 506,120 Minn. 288 |
| Parties | R. LUNSCHEN v. G. L. PETERSON and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Lincoln county to vacate a judgment for $770.75 against plaintiff, to cancel and expunge from the record an execution, levy and certificate of sale thereunder. The amended complaint alleged that the judgment was null and void because no summons was ever served on plaintiff; that plaintiff never appeared in the action either in person or by attorney; that the defendant never acquired or had jurisdiction over his person; that the value of the real estate involved was over $10,000; set out the facts concerning the docketing of said judgment, the issue of execution, the sale of the premises thereunder by the sheriff for the sum of $402.70, the execution and record of the sheriff's certificate of sale; that by reason of these facts the court in making, entering and docketing the judgment did not have jurisdiction of the plaintiff, and by reason of the fact that no copy of the execution and levy indorsed thereon was ever served on the plaintiff, and by reason of the fact that no notice of the sale was ever served on the plaintiff or posted or published as required by law the judgment, execution, levy and sale thereunder were wholly void, but that the want of jurisdiction and irregularities did not appear upon the record, and that such judgment execution, levy and sale together with the certificate constitute a cloud on plaintiff's title to the premises. The defendant demurred to the amended complaint.
The case was tried before Olsen, J., and a jury which returned a verdict that plaintiff was the owner of the property described in the complaint and entitled to recover immediate possession thereof from the defendants. From an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial they appealed. Affirmed.
Verdict sustained by evidence.
A verdict finding that the summons was not served in an action wherein judgment was entered by default, and upon execution issued thereon the land involved in this action was sold, held sustained by the evidence.
Service of process -- what evidence admissible.
Testimony as to the value of lands owned in the county, by the one upon whom service of a summons in an action for money judgment purports to have been made, held admissible as indirectly bearing upon the probability of such service, in view of his situation and subsequent conduct.
Special findings.
Although by agreement a suit in ejectment and an action to remove a cloud were merged for the purpose of trying one determinative issue, it was not error to refuse a request that the jury find specially on that issue, where the court instructed the jury to predicate the general verdict solely on the one issue tried.
Louis P. Johnson and Lind, Ueland & Jerome, for appellant.
R. F. Schulz and Johnson & Lende, for respondent.
Two actions were brought by plaintiff against G. L. Peterson; one being for the recovery of possession of 173 acres of land in Lincoln county, in which case Peterson's tenant was also a party defendant, and the other to remove a cloud from the title to said land. When the cases were reached for trial, it was arranged to have both disposed of by the trial of one issue to the jury then impaneled.
The issue then agreed upon as determinative of each case was whether or not the summons had been served upon R. Lunschen, in an action wherein the defendant Peterson herein was plaintiff and the plaintiff herein was defendant, brought in the district court of said county on March 10, 1910, to recover on a promissory note given by R. Lunschen to the father of defendant Peterson, and transferred by the father to the son prior to the commencement of the action. In this last-named action a judgment was duly rendered April 20, 1910, on default, for $770,75, execution issued, and thereunder the land above mentioned, then owned by Lunschen, was levied upon and sold to the defendant Peterson on June 20, 1910. No redemption was made. The record does not disclose when Peterson's tenant took possession, or when Lunschen first discovered that fact, or when he first learned of the judgment and execution sale. The actions herein were begun in February, 1912. It is conceded that defendant Peterson's only claim to the land rests on the said execution sale. Hence, if the judgment under which the sale was made was void for want of jurisdiction, the sale thereunder conferred no rights in the land. The jury found a verdict that plaintiff was the owner and entitled to recover the immediate possession thereof from the defendants. The defendant Peterson appeals from the order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
The three main contentions of defendant are: (a) That the verdict is not sustained by the evidence under the law applicable to the issue here involved; (b) that the court erred in receiving evidence as to the value of the land; and (c) that the court should have submitted the special verdict requested by defendant to the jury.
The jury was given the correct rule by which to determine the issue litigated. The court, after stating that the sheriff's certificate was strong prima facie evidence of the fact of service upon Mr. Lunschen, charged that the burden of proof was upon plaintiff to show by clear and satisfactory evidence that no summons was served upon him in the action wherein the judgment was rendered, and that a mere preponderance of the evidence in his favor was not sufficient. This instruction is conceded to be correct by appellant, and in accord with the rulings of the court in Jensen v. Crevier, 33 Minn. 372, 23 N.W. 541; Allen v. McIntyre, 56 Minn. 351, 57 N.W. 1060; Knutson v. Davies, 51 Minn. 363, 53 N.W. 646, and Value v. Miller, 69 Minn. 440, 72 N.W. 452. But the contention is that the evidence, instead of being clear and satisfactory in favor of the verdict, is almost conclusive against it.
Plaintiff maintained that he was in Iowa at the time the summons purports to have been served upon him at Ivanhoe, the county seat of Lincoln county, this state. The sheriff, who personally made the service, had known Mr Lunschen for more than two years. His records or books corroborated the return. The hotel register at Tyler, a village only 15 miles from Ivanhoe, has a signature on March 11 strikingly similar to an...
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