Roberts v. Enderlin Inv. Co.

• Decision Date: 06 June 1911
• Parties: ROBERTS v. ENDERLIN INV. CO. et al.
• Court: North Dakota Supreme Court

21 N.D. 594

132 N.W. 145

ROBERTS

v.ENDERLIN INV. CO. et al.

Supreme Court of North Dakota.

June 6, 1911.

Syllabus by the Court.

Filing the return of the sheriff, specified in subdivision 3 of section 6840 of the Code of 1905, 13 days after the filing of the affidavit therein specified, and after the summons had been twice published, is not a sufficient compliance with the provisions of said subdivision to confer jurisdiction by publication of the summons, when no other service of the summons was made, and no appearance was made by the defendant in the action.

The provisions of section 6840 of the Code must be strictly complied with to render effective an attempted service of summons by publication.

In cases under subdivision 3 of section 6840 of the Code, the provisions thereof require that the return of the sheriff, therein specified, be filed in the action prior to the first publication of summons, in order to authorize service of the summons by publication.

In a case arising under subdivision 3 of section 6840 of the Code, the filing of the return of the sheriff, therein specified, prior to the first publication of the summons, is a jurisdictional prerequisite, and a failure to so file such return is fatal to the validity of the service of the summons by publication.

Appeal from District Court, Wells County; Burke, Judge.

Action by Robert T. Roberts against the Enderlin Investment Company and others. Judgment for defendant T. L. Beiseker and plaintiff appeals. Reversed and remanded, with instructions to render judgment for plaintiff.Youngblood & Whipple (Purcell & Divet, of counsel), for appellant. E. H. Wright, R. A. Palmeter, and Edward P. Kelly, for respondent.

NUCHOLS, Special Judge.

This is an action to determine adverse claims to a certain tract of land, described in the complaint, situate in the county of Wells and state of North Dakota. The complaint is in the regular statutory form. The respondent, T. L. Beiseker, is the only defendant who appeared in any manner in the action. The answer of the respondent, T. L. Beiseker, denies that the plaintiff has any interest in said land, except as the vendor in a certain contract in writing for the sale thereof to one William Wagner. Said answer further alleges in substance, that said defendant succeeded to all the rights of said William Wagner under said contract, by purchase at a sale under execution of all his interest and equity in said land; that said defendant has tendered to plaintiff the balance of the purchase price of said land, according to the terms of said contract, and prays that plaintiff be required to execute and deliver to said defendant a deed to the said land, upon payment to plaintiff of said purchase price.

Plaintiff's reply admits the execution and delivery of said contract, but alleges a mutual rescission and cancellation thereof prior to the commencement of this action; and further alleges that the sale under execution of the interest of said William Wagner in said land was void, for reasons which will be considered hereafter.

The action was tried to the court without a jury, and judgment was entered, directing plaintiff to execute and deliver to the respondent, T. L. Beiseker, a good and sufficient deed of warranty to the land upon the deposit by said respondent, with the clerk of the district court, of the sum of $2,766.93, the amount found to be due the plaintiff under said contract, and from which was to be deducted the costs of the action. From this judgment, plaintiff appeals to this court and demands a review of the entire case, under section 7229 of the Code of 1905.

The record is rather voluminous, and we shall not state all the facts, but only such ultimate facts as we deem necessary to an understanding of this opinion.

On the 16th day of June, 1908, appellant, who was then the owner of the land in question, contracted in writing to sell the same to one William Wagner for the sum of $2,800, to be paid by delivering to appellant each year a designated share of the crops grown thereon, until said sum was paid. Said Wagner delivered to appellant his share of the crops for the year of 1907, which was credited on the purchase price of said land, but in 1908 Wagner abandoned the land before the crops of that year were harvested. Appellant thereupon took possession, and has ever since been in possession of the land. On the 6th day of March, 1909, prior to the commencement of this action, said Wagner, by an instrument in writing, duly acknowledged, released and relinquished all his right, title, and interest in the land to appellant. On the 11th day of August, 1908, before Wagner had released his interest in said land, respondent, Beiseker, attached the same, in an action in the district court of Wells county against William Wagner, who is the same person as William Wagner, vendee in said contract, to recover an alleged indebtedness from said Wagner to said respondent.

On the 12th day of August, 1908, said respondent filed in said action an affidavit stating, in substance, that the residence and address of said Wagner were unknown, and that personal service of the summons could not be had on him in this state, to the best knowledge, information, and belief of affiant. Summons in said action was published once each week for six successive weeks in a proper newspaper; the first publication being on the 14th day of August, 1908, and the last publication on the 18th day of September, 1908.

On the 25th day of August, 1908, the sheriff made and filed his return in said action, certifying that the summons therein was received by him on the 11th day of August, 1908, and that after diligent inquiry he was unable to make service thereof on said Wagner. No other attempt was made to serve the summons on Wagner, he did not appear in any manner in the action, and judgment by default was taken against him for a sum therein specified, and the judgment directed the sale of the attached property to satisfy the same. On the 19th day of April, 1909, the sheriff of said county of Wells purported to sell to the respondent, Beiseker, all the equity and interest of said Wagner in the land in question, pursuant to a special execution issued on said judgment, and delivered to said respondent a certificate of sale therefor, and no redemption therefrom has ever been made. Before the action at bar was commenced, appellant was notified by respondent, Beiseker, that he had succeeded to the rights of said Wagner under said contract, and was ready, able, and willing to perform all the conditions thereof to be performed by said Wagner, but appellant refused to accept such performance by said respondent.

[1] Appellant is the sole and unqualified owner of the land, unless the respondent, T. L. Beiseker, acquired the rights and interest of said William Wagner in said contract, and is entitled to a deed upon the performance of the conditions thereof to be performed by the said Wagner. If said respondent has any interest in the land, the same was acquired by purchase at the sale under execution of the equity and interest therein of William Wagner, the vendee in said contract. But counsel for appellant contend that the judgment on which the execution was issued is void for several reasons, one of which reasons is that the return of the sheriff was not filed with the clerk of court at the time the affidavit for the publication of the summons was filed, nor until after...