Simonson v. Typer

• Decision Date: 04 December 1922
• Docket Number: 5939.
• Citation: 285 F. 240
• Parties: SIMONSON v. TYPER.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F. 240

SIMONSON v. TYPER.

No. 5939.

United States Court of Appeals, Eighth Circuit.

December 4, 1922

Roderick N. Matson, of Cheyenne, Wyo. (Clarence A. Swainson, of Cheyenne, Wyo., on the brief), for appellant.

H. C Brome, of Omaha, Neb. (Thomas M. Hyde, of Basin, Wyo., on the brief), for appellee.

Before LEWIS and KENYON, Circuit Judges, and YOUMANS, District Judge.

YOUMANS District Judge.

This is an appeal from a decree against Chauncey B. Typer, Clifford W. Axtell, John Z. Jones, and Lee Simonson foreclosing a mortgage given by Chauncey B. Typer to William Typer to secure an indebtedness of $5,000 upon certain lands in Hot Springs County, Wyo. William Typer was and had been at all times mentioned herein a citizen and resident of Ogle county, Ill., and the defendants were residents of Wyoming. The complaint alleged that the defendants Clifford W. Axtell John Z. Jones, and Lee Simonson claimed some interest in the real estate described in the mortgage, but that such interest or claim was inferior and subject to the lien of appellee's mortgage. The appellant, Lee Simonson answered, setting up two defenses, which he now claim were sustained by the evidence. The adverse decision of the court below as to these two defenses is assigned here as error. The first defense was that William Typer was made defendant in a suit in the district court of the Fifth judicial district in and for the county of Hot Springs, in the state of Wyoming, and that he in that suit was adjudged to have no right, title, interest, or equity in the real estate involved in that suit, which was the same real estate described in appellee's mortgage. This defense was based upon two propositions: (a) That in the suit in the state court referred to William Typer was served with summons outside the state of Wyoming, and that judgment by default was taken against him; and (b) that William Typer entered his appearance in the suit in the state court, and that after entering such appearance judgment by default was taken against him. The second defense was that William Typer had, prior to the time that Simonson obtained title to the real estate, released the mortgage he was then seeking to foreclose in the United States District Court. Simonson obtained title to the property through the judicial sale in the proceedings in the state court.

The record of the proceedings in that court were introduced in evidence. That record disclosed that a suit was brought in that court by John Z. Jones against Chauncey B. Typer to foreclose a mortgage upon the land involved in the suit in the court below. C. W. Axtell, who is the same as Clifford W. Axtell, was made a party defendant. Axtell was the attorney of Jones in bringing the suit. Axtell, acting as attorney for himself, filed an answer and cross-bill. William Typer and Frances B. Beldon were made defendants in the cross-bill. There was no allegation in the answer and cross-bill that William Typer was a nonresident of the state of Wyoming. The cross-bill sought foreclosure of a mortgage executed by Chauncey B. Typer to C. W. Axtell to secure an indebtedness of $15,000, and in addition thereto Axtell sought a judgment for $3,000 as an attorney's fee to himself, alleging that such fee was provided for in the mortgage. Axtell delivered to the clerk of the state court a praecipe for summons which reads as follows:

'To the Clerk of Said Court:

'Issue summons in said case, directed to the sheriff of said county, and to Ogle county, Illinois, returnable according to law, indorsed: Foreclosure of mortgage, equitable relief and judgment in the sum of $18,000, with interest at 8 per cent. per annum from October 9, 1918.

'C. W. Axtell, Attorney for Defendant.'

A summons was issued to the sheriff of Hot Springs county, Wyo., for Chauncey B. Typer, C. W. Axtell, William Typer, and Frances B. Beldon. The following summons was also issued by the clerk: 'The State of Wyoming, County of Hot Springs-- ss.:

'Summons.

'To the Sheriff of Ogle County, State of Illinois-- Greeting:

'You are commanded to notify Chauncey B. Typer, C. W. Axtell, William Typer, and Frances B. Beldon that they have been sued in the district court of the Fifth judicial district of the state of Wyoming, sitting in the town of Thermopolis, within and for the county of Hot Springs, in the state of Wyoming, for the trial of causes arising under the laws of said state, by John Z. Jones, and that unless they answer the petition of the plaintiff herein filed on or before the 18th day of January A.D. 1919, said petition, with all the matters and allegations therein contained, will be taken as true, and judgment rendered accordingly. And make due return of this writ, according to law, on the 30th day of December A.D. 1918.

'Witness: Wilbur A. Woodrow, clerk of said court, and the seal thereof, at Thermopolis, Wyoming, this 21st day of December A.D. 1918.

'Wilbur A. Woodrow, Clerk of District Court.'

On the back of this summons there appeared the following indorsement:

'In District Court Fifth Judicial District.

'John Z. Jones v. Chauncey B. Typer, C. W. Axtell, William Typer, and Frances B. Beldon. Summons. A Civil Action for the recovery of Money Only.

'The plaintiff will take judgment for the sum of $ . . ., together with interest thereon at the rate of . . . per cent. per annum, from the . . . day of . . ., A.D. 19 . . ., and costs of suit, if the defendant fail to answer.

'Issued December 21, 1918.

'Filed January 2, 1919.

'Wilbur A. Woodrow, Clerk of the District Court,

'Lena A. Butler, Deputy Clerk.'

There also appeared the following with reference to service:

'The State of Illinois, County of Ogle-- ss.:

'I hereby certify that I received the within summons on the 25th day of December, A.D. 1918, at 10 o'clock a.m., and I served the same by delivering a certified copy thereof, together with all the indorsements thereon, together with a copy of the answer and cross-petition of C. W. Axtell in said cause, to William Typer, the within name defendant, at Polo, Ogle county, Illinois, on the 26th day of December A.D. 1918.

'George D. Banning, Sheriff, 'By Sheridan N. Dobson, Deputy Sheriff.

'Subscribed and sworn to before me this 28th day of December, 1918.

'Millard F. Funk, Notary Public.

'My commission expires the 26th day of March, 1922.

'George D. Banning, Sheriff Said County, 'Sheridan N. Dodson, Deputy Sheriff.'

Section 5623, Complied Statutes of Wyoming for 1920, is as follows:

'Requisites of Summons-- To Whom Directed. The summons shall be issued by the clerk, shall be under the seal of the court, from which it is issued, and shall be signed by the clerk. Its style shall be: 'The State of Wyoming, . . . County,' and it shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant, or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff (giving his name) at the time stated therein, or the petition will be taken as true, and judgment rendered accordingly, and when the action is for the recovery of money only, there shall be indorsed on the writ the amount to be specified in the praecipe, for which, with interest, judgment will be taken if the defendant fail to answer. If defendant fail to appear judgment shall not be rendered for a larger amount and the costs.'

Section 5627, Compiled Statutes of Wyoming for 1920, reads as follows:

'Who May Serve Summons-- Special Appointment. The summons shall be served by the officer to whom it is directed, who shall indorse on the original writ the time and manner of service, or it may be served by any person not a party to the action, appointed by such officer; but the authority of such person shall be indorsed on the writ; and when the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of the state, the return shall be verified by oath. * * * And when such writ, order, process or notice is served by a person so appointed, to whom it is directed, or when the service is made out of this state, the return shall be verified on an oath or affidavit. * * * '

Section 5636, Compiled Statutes of Wyoming for 1920, reads as follows:

'Service by Publication. Service by publication may be had in either of the following cases: * * * 4. In actions which relate to, or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a foreign corporation, or his place of residence cannot be ascertained. * * * '

Section 5638, Compiled Statutes of Wyoming for 1920, reads as follows:

'Affidavit for Service by Publication. Before service by publication can be made, an affidavit of the party, his agent or attorney, must be filed showing that service of a summons cannot be made within this state, on the defendant to be served by publication, and that the case is one of those mentioned in section 5636; and when such affidavit is filed, the party may proceed to make service by publication.'

Section 5641, Compiled Statutes of Wyoming for 1920, reads as follows:

'Personal Service Out of State. In all cases where service may be made by publication under the provisions of this chapter, personal service of a copy of the summons and the petition in said action may be made out of the state, and such summons when issued for service out of the state, shall be returnable at the option of the party having it issued, on the second third or fourth Monday after...