Schoonmaker v. St. Paul Title & Trust Co.

• Decision Date: 05 May 1922
• Docket Number: No. 22703.,22703.
• Citation: Schoonmaker v. St. Paul Title & Trust Co., 152 Minn. 94, 188 N.W. 223 (Minn. 1922)
• Parties: SCHOONMAKER v. ST. PAUL TITLE & TRUST CO. et al.
• Court: Minnesota Supreme Court

152 Minn. 94

188 N.W. 223

SCHOONMAKER

v.ST. PAUL TITLE & TRUST CO. et al.

No. 22703.

Supreme Court of Minnesota.

May 5, 1922.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by James Schoonmaker against the St. Paul Title & Trust Company and others.Findings and judgment for plaintiff, and from an order denying a new trial defendantJames M. Millett appeals.Affirmed.

Syllabus by the Court

The qualification of a newspaper to publish legal notices is not shown by an affidavit of publication which fails to state, in affidavit of that such newspaper was circulated in and near its place of publication to the extent of at least 240 copies, regularly delivered to paying subscribers.

An interlocutory judgment in a suit for partition, which determined that the land was subject to the lien of a judgment in favor of one of the defendants, estops a codefendant from questioning the validity of the judgment in a subsequent action, involving the title to the same land in which the defendants or those in privity are adverse parties.

Under the St. Paul City Charter, in effect prior to 1914, notice of expiration of the time for redemption from the sale of land, for the nonpayment of a special assessment, was properly addressed to the person named as the owner in the assessment records in the office of the city treasurer.Specification in such notice of the lump sum representing the assessment, charges, and interest calculated to the last day of redemption, was sufficient.

After the amended city charter went into effect in 1914, the payment of prior and subsequent assessments was not essential to entitle a purchaser of land, sold for the nonpayment of a special assessment, to receive a deed from the city.J. P. Kyle, of St. Paul, and J. M. Millett, of Hastings, for appellant.

Jas. Schoonmaker and Wm. F. Hunt, both of St. Paul, for respondent.

LEES, C.

Action to determine adverse claims to a vacant lot in the city of St. Paul.There were findings in plaintiff's favor.The defendantJames M. Millett has appealed from an order denying his motion for a new trial.Plaintiff claims title by virtue of two deeds from the city of St. Paul, executed after a sale under special assessment judgments.The validity of plaintiff's claim is questioned on several grounds:

1.Notice of application for the entry of the judgments was given by publication, under the provisions of the charter of St. Paul, adopted in 1900 and amended in 1904.Section 267 directed that the notice should be given by the city treasurer by publication in the official paper of the city.Section 268 required the treasurer to file the notice, together with an affidavit of its publication, in the office of the clerk of the district court.Section 30 provided for the designation of the official newspaper of the city and required it to be qualified under the laws of this state to publish legal advertisements.The notice was published in the Rural Weekly, referred to in the proceedings as the official newspaper of the city.The affidavit of publication stated that the paper was ‘printed and published in the city of St. Paul, in the county of Ramsey, in the state of Minnesota,’ was ‘dated in St. Paul and generally circulated in said city and state’; that at each regular issue more than 240 complete copies were printed, published, and delivered to paying subscribers.We discover no substantial difference between this affidavit and those condemned in Lovine v. Goodridge-Call Lumber Co., 130 Minn. 202, 153 N. W. 517, and in Burbridge v. Warren, 139 Minn. 346, 166 N. W. 403.It failed to comply with the requirements of subsection 4 of section 5515, R. L. 1905, now section 9413,G. S. 1913.This court has held in tax cases that it is the fact and not the proof of publication which gives the court jurisdiction.Board of Com'rs v. Morrison, 22 Minn. 178;Bennett v. Blatz, 44 Minn. 56, 46 N. W. 319;Hoyt v. Clark, 64 Minn. 139, 66 N. W. 262;Campbell v. Barry, 187 N. W. 967.The affidavit was the only proof of the fact of publication so far as the record shows.If the record discloses the manner in which notice was given and this was ineffectual to confer jurisdiction, it will not be presumed that notice was given in some other way.Holmes v. Loughren, 97 Minn. 83, 105 N. W. 558.It appears, upon the face of this record, that the notices were published, but not that they were published in a qualified newspaper, for there is no presumption of qualification and there was no proof thereof.Wyman v. Baker, 83 Minn. 427, 86 N. W. 432;Lovine v. Goodridge-Call Lumber Co., supra.Chapter 155,Laws 1919, purports to legalize affidavits of publication defective in the above-mentioned respect.The conclusion stated in the next section of this opinion renders it unnecessary to determine whether it was within the power of the Legislature to cure such defects in this manner.

2.On November 11, 1912, an interlocutory judgment was rendered in the district court in an action for partition, in which one Michael J. Doherty was plaintiff and this appellant, the city of St. Paul, and others were defendants.That judgment was involved in Doherty v. Ryan, 123 Minn. 471, 144 N. W. 140.It determined, among other things, that the property was subject to the lien of a judgment in favor of the city for the amount of an assessment levied to defray the cost of grading St. Clair street.It is this assessment which is the basis of one of respondent's deeds.Respondent introduced the judgment in the partition case in evidence.He asserts that it estops appellant from questioning the validity of the judgment in the assessment proceedings.This court has held that parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action.Pioneer, etc., Co. v. Bartsch, 51 Minn. 474-479, 53 N. W. 764,38 Am. St. Rep. 511.It has also held that, where two claimants of a tax certificate were joined as defendants in an action involving the validity of the certificate and each answered, asserting ownership of the certificate, and it was adjudged that one of them was the owner, the judgment was conclusive as to that, in a subsequent action brought upon the certificate by the successful claimant.Gold-schmidt v. County of Nobles, 37 Minn. 49, 33 N. W. 544.In Corcoran v. C. & O. Canal Co., 94 U. S. 741, 24 L. Ed. 190, it was said of codefendants, in a suit in equity between whom no issue was raised by the pleadings and no adversary proceedings had, that:

‘It has long been settled that adverse interests as between codefendants may be passed upon and decided, and if the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree.’

The application of this doctrine is illustrated by Central Trust Co. v. Grant L. Works, 135 U. S. 207, 10 Sup. Ct. 736, 34 L. Ed. 97;Devin v. City of Ottumwa, 53 Iowa, 461, 5 N. W. 552;Leavitt v. Wolcott, 95 N. Y. 212.Other cases of like import are cited in a note to El Reno v. Cleveland, etc., Co., 27 L. R. A. (N. S.) 650, and in Black on Judgments, § 599.

A partition suit is a proceeding in rem.D'Autremont v. Anderson Iron Co., 104 Minn. 165, 116 N. W. 357,17 L. R. A. (N. S.) 236, 124 Am. St. Rep. 615,15 Ann. Cas. 114.In its nature the proceeding is equitable.Hoerr v. Hoerr, 140 Minn. 223, 165 N. W. 472,167 N. W. 735.Under our statute the complaint must set forth the interest of all persons in the property, whether by way of ownership or lien.Section 8030,G. S. 1913.Proof of the existence, amount and priority of liens may be made.Section 8042.And there is a provision authorizing their payment out of the proceeds of the sale of the property, section 8043.Final judgment is entered when the referees report their division of the property, or upon the confirmation of a sale when a sale is ordered.Sections 8034,8048.The judgment upon which respondent relies was not the final judgment to which the statute refers.It was rendered in accordance with the provisions of sections 8032,8042.As a rule, the doctrine of res judicata applies only to final judgments.Black on Judgments, § 509;Virtue v. Creamery, etc., Co., 123 Minn. 17-33, 142 N. W. 930, 1136, L. R. A. 1915B, 1179, 1195.The interlocutory judgment determined that the property was subject to the lien of the judgment in favor of the city for the amount of the assessment, and directed a sale of the property and the disposition of the proceeds of the sale.In so far as these matters were determined, nothing was left for the future consideration or judicial action of the court.To the extent indicated, it fixed the rights of the parties and determined what the final judgment should be.We think the rule applies...