Turnquist v. Kjelbak

• Decision Date: 13 July 1956
• Docket Number: No. 7567,7567
• Parties: Carl O. TURNQUIST, also known as C. O. Turnquist, Plaintiff and Respondent, v. Ole KJELBAK, John A. Ekren, also known as John A. Ekern, Adolph Segelbaum, Anders Joa, Janney Semple Hill & Company, a corporation, of Minneapolis, Minnesota, Massey Harris Company, a corporation, of Racine, Wisconsin, St. Paul Bank, a banking corporation, of St. Paul, Minnesota, First National Bank, a national banking corporation, of Minnesota, Minnesota, John A. Graham, State Examiner, and Successor to the Receiver of the Farmers State Bank, a defunct banking corporation, of Rawson, North Dakota, McKenzie County, North Dakota, a public corporation, and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the property described in the complaint, Defendants. John A. Ekren, also known as John A. Ekern, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 854

77 N.W.2d 854

Carl O. TURNQUIST, also known as C. O. Turnquist, Plaintiff and Respondent, v. Ole KJELBAK, John A. Ekren, also known as John A. Ekern, Adolph Segelbaum, Anders Joa, Janney Semple Hill & Company,

a corporation, of Minneapolis, Minnesota, Massey Harris

Company, a corporation, of Racine, Wisconsin, St. Paul Bank,

a banking corporation, of St. Paul, Minnesota, First

National Bank, a national banking corporation, of Minnesota,

Minnesota, John A. Graham, State Examiner, and Successor to

the Receiver of the Farmers State Bank, a defunct banking

corporation, of Rawson, North Dakota, McKenzie County, North

Dakota, a public corporation, and all other persons unknown

claiming any estate or interest in or lien or encumbrance

upon the property described in the complaint, Defendants.

John A. Ekren, also known as John A. Ekern, Defendant and Appellant.

No. 7567.

Supreme Court of North Dakota.

July 13, 1956.

Rehearing Denied Aug. 9, 1956.

Syllabus by the Court.

1. Whatever duties are imposed by the law upon the sheriff may be performed by the deputy in his name.

2. Where the sheriff performs his duty as specified by statute he is acting in a ministerial capacity.

3. A sheriff's return of 'Defendant Not Found' is properly made and signed in the sheriff's name by the deputy. The act of the deputy is the act of the sheriff.

4. When the affidavit for publication and sheriff's return, 'Defendant Not Found,' states therein the matters required to be stated by the statutes, Sections 28-0620 and 28-0621, NDRC 1943, that is sufficient.

5. A strong presumption is indulged in favor of the correctness of a sheriff's

return. Party challenging it has the burden of establishing the insufficiency, falsity or incorrectness thereof by clear and convincing proof.

6. An application by defendant to open up a default judgment quieting title must be made within one year of the entry of judgment. Section 32-1713, NDRC 1943.

Hyland & Conmy, Bismarck, for appellant.

John O. Garaas, Watford City, for respondent.

GRIMSON, Judge.

This is an action to quiet title in the plaintiff to the following described land:

Southwest Quarter of the Southwest Quarter (SW 1/4 SW 1/4) of Section Fifteen (15); Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of Section Seventeen (17); South Half of the Northwest Quarter (S 1/2 NW 1/4) Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of Section Twenty-two (22), in Township One Hundred Forty-eight (148), North of Range One Hundred One (101) West of the Fifth Principal Meridian, McKenzie County, North Dakota.

The complaint is in statutory form. The record shows that service was made by publication upon the defendant, John A. Ekren. He defaulted. Judgment was entered quieting title in the plaintiff, Dec. 11, 1953. On the 3rd day of August, 1955, motion was made on behalf of defendant, John A. Ekren, also known as John A. Ekern, to open up the judgment rendered on Dec. 11, 1953, and to allow the said defendant to interpose an answer and a counterclaim. Ground alleged for the said action was that no proper return of attempted service by the sheriff upon the said defendant was shown so that the court never had obtained jurisdiction over him. The motion was denied. Defendant, John A. Ekren appeals.

The plaintiff's first specification of error is: 'The court erred in holding that the return of the sheriff of 'Defendant Not Found' was sufficient as to substance to give the court jurisdiction to render judgment by default.' He first contends the deputy sheriff has no authority to make the return.

Section 28-0620 NDRC 1943, provides: 'Summons may be served upon any defendant by publication * * * [subsection 4,] when personal service cannot be made on such defendant in this state to the best knowledge, information and belief of the person making the affidavit mentioned in section 28-0621 NDRC 1943, and such affidavit is accompanied by the return of the sheriff of the county in which the action is brought stating that after diligent inquiry for the purpose of serving such summons he is unable to make personal service thereof upon such defendant.'

Section 28-0621 NDRC 1943, provides that before service by publication may be had there shall be filed a verified complaint, stating a cause of action against the defendant and also an affidavit stating grounds for such service. One of these grounds is that the action is for the purpose of quieting title to real estate, Sub-Section 3. Such affidavit was filed by the plaintiff, together with the following return of the sheriff, omitting title:

'State of North Dakota

'County of McKenzie} ss.

Sheriff's Return Defendant Not Found.

'I, J. J. Zitek, Sheriff of said County, hereby certify and return that the summons, complaint and Notice of No Personal Claim in the above entitled action which are hereunto attached came into my hands for service on the 5th. day of August, 1952, and that I have made diligent search and inquiry for the above named defendants * * * John A. Ekren, also known as John A. Ekern; * * * upon whom to make legal service of said Summons, Complaint, and Notice of No Personal Claim but after such search and inquiry for the purpose of serving such Summons, I have been unable to find said defendants in McKenzie County, North Dakota, or to make personal service of said Summons upon said Defendants.

'Dated this 5th. day of August 1952.

'J. J. Zitek

'Sheriff of McKenzie County, N. Dak.

'By Helen L. Arildsen,

'Deputy.'

The complaint, an affidavit and the sheriff's return were duly filed as provided in these sections.

We will first consider the authority of the sheriff's deputy in matters of this kind.

'Section 11-1011 NDRC 1943 makes provision for the appointment of deputies by the sheriff.

Generally the sheriff may do in person or by deputy whatever the statute expressly authorizes him to do as respects service of process. Aversa v. Aubry, 303 Pa. 139, 154 A. 311. In Scofield v. Wilcox, 33 N.D. 239, 156 N.W. 918, 919, this court interprets the decision in Wilson v. Russell, 4 Dak. 376, 31 N.W. 645, and Summerville v. Sorrenson, 23 N.D. 460, 136 N.W. 1038, 42 L.R.A.,N.S., 877, as holding 'That the official acts of a deputy sheriff are the acts of the sheriff.'

In Wilson v. Russell, supra [4 Dak. 376, 31 N.W. 650], the authority of the deputy sheriff and his methods of procedure are considered. The court says:

'An examination of the provisions of our Codes relating to the office and duties, powers and prerogatives, of a sheriff, shows that the sheriff is an elective county officer, vested with certain powers and authority, and required to perform certain acts, and empowered to appoint deputies, and acting in his own person, or by and through his deputies appointed only by himself; and, in either case, whether acting himself or through his deputy, the act done, if within the scope of his authority, is the official act of the sheriff. * * * He is called 'deputy-sheriff,' which means the deputy of the sheriff. He is 'one appointed to act for another,' and not in his own name, person, or right. An execution or other writ is directed to the sheriff, and never to his deputy, and the deputy may execute the writ and make return; but cannot legally do it in his own name or office as deputy, independent of the sheriff, and must do it for and by the authority and in the name of the sheriff for whom and in whose stead he acts.'

Thompson Bros. v. Phillips, 198 Iowa 1064, 200 N.W. 727, was an action to set aside a judgment by default on the ground that the return of the service on appellants was defective and conferred no jurisdiction on the court because it was signed in the name of the sheriff by his deputy. The court held:

The 'sheriff's return of service is properly made and signed in his name, by deputy making service. * * * The act of the deputy is the act of the sheriff; he has no original power, but acts as the representative or agent of the sheriff, who is the principal. Headington v. Langland, 65 Iowa 276, 21 N.W. 650.'

In Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089, 21 Am.St.Rep. 52, it was said: "The act and return of a deputy is a nullity, unless done in the name, and by the authority, of the sheriff." That is the holding of this court in Summerville v. Sorrenson, 23 N.D. 460, 136 N.W. 938, 42 A.L.R.,N.S., 877. Clearly the return of 'Defendant Not Found' in the sheriff's name by the deputy sheriff in the case at bar was proper.

It is also contended by the appellant that the deputy sheriff can only carry out the ministerial duties of the sheriff. He claims that in the performance of his duties the sheriff in making return of 'Defendant Not Found' in connection with service by publication is vested with a discretionary power in the exercise of judgment as to the diligence he must exercise, in other words, that he is exercising judicial power. In that appellant is in error. The sheriff, himself, is a ministerial officer. In 47 Am.Jur., Sheriff, Police and Constables, Section 3, p. 822, it is said: 'Sheriffs, constables and United States Marshals are ministerial officers.' See also 80 C.J.S., Sheriffs and Constables, Sec. 35, p. 204; Mechem on Public Officers, Section 7445, p. 86.

'Official action, the result of performing a certain specific duty arising from designated facts, is a ministerial act. Grider v. Tally, 77 Ala. 422, 54 Am.Rep. 65. Another way of expressing the same thought is that a duty is to be regarded as ministerial when it is a duty that has been positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated; the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion. Mechem, Public Offices and Officers, (1890) par. 658, p. 442. And that a necessity may exist for the ascertainment, from personal knowledge or from information derived from other sources, of those facts or...