Roosevelt v. Land & River Co.

• Decision Date: 16 November 1900
• Citation: 108 Wis. 653,84 N.W. 157
• Court: Wisconsin Supreme Court
• Parties: ROOSEVELT v. LAND & RIVER CO. ET AL.

108 Wis. 653

84 N.W. 157

ROOSEVELT

v.LAND & RIVER CO. ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1900.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by James Roosevelt against the Land & River Company and others to foreclose a mortgage. From a judgment in favor of plaintiff, the Land & River Company appeals. Reversed.

In the year 1890 Mrs. Vernam, the owner of the property in controversy, mortgaged the same to the Land & River Improvement Company, which mortgage was assigned to plaintiff. May 23, 1895, she conveyed the property to said company, subject to the mortgage. May 1, 1896, the company executed to Robert De Forest, Samuel E. Kilner, and George Sherman, as trustees, a trust deed of this and a large amount of other property to secure certain of its bonds. In 1896 a creditors' suit was commenced in the United States circuit court for the Western district of Wisconsin against said company by certain of its creditors, and such proceedings were had that said De Forest, Kilner, and one William B. Banks were appointed receivers. Said receivers duly qualified and took possession of all of said property. November 16, 1896, said trustees brought suit in said United States court against said company to foreclose such trust deed. The proceedings were afterwards amended so as to make Sherman plaintiff, and the other trustees defendants, as receivers. March 22, 1898, the plaintiff commenced this action to foreclose his said mortgage, naming said company and said trustees, receivers, and others, parties defendant. Said receivers were shown to be nonresidents of the state, and service was attempted to be made by publication. May 23, 1898, a decree of foreclosure was entered in the United States court in the action to foreclose the trust deed. April 23, 1898, lis pendens was filed in this action. May 12, 1898, a sale of the property included in the trust deed was made, by consent of parties, to H. W. De Forest. The sale was confirmed, and on June 20, 1898, the purchaser conveyed the premises in suit to the appellant, the Land & River Company, and possession was taken. November 9, 1898, judgment of foreclosure was entered in this action. February 21, 1900, a sale of the property under said judgment was had, and the plaintiff became the purchaser. Such sale was confirmed March 24th following. On April 19th, upon an affidavit which set out the facts in relation to plaintiff's mortgage, the foreclosure and sale, and demand upon said Land & River Company for possession of the mortgaged premises, and a refusal to deliver such possession, the plaintiff procured an order to show cause why a writ of assistance should not issue. The Land & River Company made return to said order, setting out the proceedings to foreclose said trust deed, and its title thereunder, and denying the right of plaintiff to a writ of assistance, on the ground that no jurisdiction had ever been obtained of the trustees and receivers in this action. The particular grounds for its contention, among other things, were that service upon them was attempted to be made by publication, and that no sufficient affidavit or valid order for the publication of the summons was ever made, and that no sufficient proof of mailing the summons was ever filed. Copies of the files and proceedings in the United States court in said matter were made a part of said return. Upon the hearing in the circuit court an order was entered directing that a writ of assistance should issue, giving the possession of the mortgaged premises to the plaintiff. From such order the Land & River Company has taken this appeal.Sanborn, Luse, Powell & Ellis, for appellant.

Henry W. Gilbert and H. C. Sloan, for respondent.

BARDEEN, J. (after stating the facts).

Two propositions are to be considered on this appeal: (1) Did the plaintiff obtain jurisdiction of the trustees and receivers, so as to bind them by the judgment herein? (2) If not, who is entitled to the possession of said premises?

1. The order of publication was dated June 10, 1898, and was based upon the papers on file, and the affidavit of the plaintiff's attorney, dated May 27, 1898,--14 days before such order was made. To meet the requirements of section 2640, Rev. St. 1898, as to the diligence used in making service of the summons, said affidavit referred to the sheriff's return on file. Such return is undated, but appears to have been filed April 23, 1898. The point is made by appellant that an affidavit made 14 days prior to the making of the order, the latter being based in part upon a return of the sheriff made 6 weeks prior, is not a sufficient foundation to support an order for the publication of the summons. Section 2640 says that the application for such an order “shall be based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist.” The question is, when must the “facts required” be shown to exist? No decision of this court has been cited, and, after diligent search, none has been found, which throws any light on this question. In other states, however, under similar statutes, we find decisions directly upon the point. Thus, in Union v. Atwell, 95 Mich. 239, 54 N. W. 760, it is said: “An order of publication must be based upon facts existing at the time the order is made. The rule that, as matter of evidence, a fact in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown, does not apply to the averment of a jurisdictional fact, which must appear as existing at the time the order is made.” It was accordingly held that an affidavit of nonresidence made five days before the making of the order would not sustain it. See, also, Adams v. Circuit Judge, 98 Mich. 51, 56 N. W. 1051. In Forbes v. Hyde, 31 Cal. 342, it is held that the facts must appear before jurisdiction to make the order attaches, that the making of the affidavit and the order must follow each other in reasonably quick succession, and that an order was not well supported by an affidavit made some 4 months before it was applied for. Following in line with this case, the same court, in Cohn v. Kember, 47 Cal. 144, held that a delay of 15 days between the making of the affidavit and the application for the order...