Raunn v. Leach
| Decision Date | 25 April 1893 |
| Parties | Knute A. Raunn v. John Leach |
| Court | Minnesota Supreme Court |
Submitted on briefs April 4, 1893
Application for reargument denied May 16, 1893.
Appeal by plaintiff, Knute A. Raunn, from an order of the District Court of St. Louis County, Calvin L. Brown, J., made February 25, 1893, overruling his demurrer to the answer.
The plaintiff alleged that he owned the northwest quarter of section two (2) T. 154, R. 45, in Polk county, worth $ 500. That the defendant John Leach owned it January 15, 1880, and on that day mortgaged it to plaintiff to secure the payment of $ 200 and interest, one year thereafter. That the defendant failed to pay and plaintiff foreclosed the mortgage by action in the District Court, and defendant was served by publication of the summons. He did not appear in the action and judgment of foreclosure was entered on proof of his default, and the land sold by the sheriff, and bid in by plaintiff, and was not redeemed from the sale.
The defendant answered that when the foreclosure action was instituted he was not a resident of this State, that the only service of the summons was by publication in the "Crookston Brodax," a newspaper published daily in Polk county. That the summons was published only in papers issued February 7, 14, 23, and March 2, 9 and 15, 1882, and that defendant had no other notice of the pendency of the foreclosure action; that the court acquired no jurisdiction of that action, and the sale was void.
To this answer plaintiff demurred on the ground that it did not state facts sufficient to constitute a cause of action. The District Court overruled this demurrer, and plaintiff appeals.
Order reversed.
C. M Simpson, for appellant.
In the case of Godfrey v. Valentine, 39 Minn. 336, this court followed Ullman v. Lion, 8 Minn. 381, (Gil 338,) and Golcher v. Brisbin, 20 Minn. 453, (Gil. 407,) and held that if the proof fails to show a publication once in each week, the service is insufficient and the proceeding void. All the law requires is, that the publication be made once in each week, for six consecutive weeks. 1878 G. S. ch. 66, § 65. A week is a period of seven days, beginning with Sunday and ending Saturday. It is also a period of seven successive days. Ronkendorff v. Taylor's Lessee, 4 Pet. 349.
White, Reynolds & Schmidt, for respondent.
1878 G. S. ch. 66, § 65, is substantially the same as the statute with reference to the publication of notices in the Probate Courts. They are grouped together in Greenwood v. Murray, 28 Minn. 120. In Dayton v. Mintzer, 22 Minn. 393, this court held that publications on regular publication days, at the rate of one a week, if separated by intervals of a week, are sufficient. In Godfrey v. Valentine, 39 Minn. 336, this court cited Hernandez v. His Creditors, 57 Cal. 333, with approval. That case holds that publications must occur with an interval of not more than one week between them. This very question was, however, passed upon and decided by Judge Blatchford when on the Circuit bench, in the matter of David J. King et al., bankrupts, 5 Ben. 453, and the conclusion reached by him is the same as that for which the defendant contends.
Collins, J. Vanderburgh, J., absent, took no part herein.
In this action, brought to determine an adverse claim made to certain real estate, the complaint and answer disclosed that plaintiff's alleged title in fee depended wholly upon the regularity of the proceedings in an action brought in 1882 to foreclose a mortgage upon the property, executed and delivered to him by the defendant, said action having been brought while the latter was a nonresident of the state, and service of the summons having been made, if at all, by publication. By demurrer to the answer the regularity and sufficiency of these foreclosure proceedings have been assailed at but one point. It stands admitted that the summons was published in a daily newspaper six times, as follows: On Tuesday, February 7th, and on the following Tuesday, February 14th; next on February 23d, and then on March 2d and 9th, each being on Thursday; and finally on Wednesday, March 15th. It will be seen that the third publication was made nine days after the second, while the sixth came six days subsequent to the fifth. Counsel for respondent take the position that, as the first publication was upon Tuesday, each succeeding one should have been on the same day of the week, -- that is, the summons should have been published at regular intervals of seven days, -- and this was the view, undoubtedly, of the learned judge below when sustaining the demurrer.
The statute which must now be construed, 1878...
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