182 N.W. 934 | N.D. | 1921
Lead Opinion
Statement. — This cause of action, like the proverbial cat with its many lives, again is presented to this court as a memorial,
In 1906, in the Minnesota case cited, the plaintiff instituted a proceeding to dissolve the defendant coal company, which proceeding was dismissed. In 1909, in the Federal case cited, the court dismissed the petition of the plaintiff herein to set aside the Dana mortgage of $500, assigned to the defendant Investor’s Syndicate by the coal company upon grounds of fraud. In 1911, this court (22 N. D. 452) upheld the right of the Investor’s Syndicate to foreclose this mortgage, as against the personal claim of the plaintiff herein, as intervener in such action, to defeat such foreclosure upon the ground that ho was the owner of such mortgage. In that action the decision of the Federal court was held to be res judicata concerning the mortgage. In 1913, this court (25 N. D. 490) affirmed a bill of costs for the foreclosure of such mortgage. In 1915, this court (31 N. D. 247), in an action brought by the plaintiff, Beyer, to determine adverse claims to three quarter sections of the coal company’s lands, held that Beyer was entitled to a lien upon such lands for taxes that he had paid thereon. In 1915, again, this court (31 N. D. 259), in an action brought by the defendant Investor’s Syndicate to foreclose a mortgage given by the coal company, upon the three quarter sections of land, held that, the plaintiff, Beyer, appearing as intervener, and representing the minority stockholders, the corporation having defaulted in appearance, such mortgage was fictitious and therefore void. In 1916, this court (32 N. D. 542) upon a demurrer to a complaint by Beyer representing the minority stockholders, to enjoin the foreclosure of the Dana mortgage by the Investor’s Syndicate, held that the complaint stated a cause of action, and that the plea of res judicata was not available against Beyer, because he represented minority stockholders. In 1916, again, this court (32 N. D. 560) affirmed an order of the district court setting aside a sale made upon the judg
In March, 1920, plaintiff filed a notice of Us pendens in Stark county, claiming a lien for $4,000 upon the three quarter sections- mentioned, and therein giving notice of the commencement of an action to impress such land with a lien for such amount prior to any claim or demands of the defendants. Plaintiff also filed in the district court an affidavit, which states that plaintiff and the defendants are all'nonresidents, and that personal service of the summons cannot be made, with the possible exception of the coal company, which has a resident agent at Dickinson. After the filing of the complaint the summons and complaint in this action were served upon one Polsom, as the agent of the coal company, in Stark county, and upon all of the other defendants by personal service without the state, excepting the defendant co-operative company, which, as a corporation, has ceased to exist. In June, 1920, the defendants, upon notice, appeared specially and moved the trial court for an order quashing and setting aside the attempted service of the summons on the ground that the same was abortive, null, and void. Upon the hearing of this motion, the trial court did not deem it
In the record it appears that the coal company, in August, 1895, certified that Mr. Folsom was appointed as its agent, and was authorized to accept service of processes on behalf of the coal company. This certificate was then filed with the secretary of state. Mr. Folsom, in an affidavit, states that he was informed some twenty or twenty-five years ago that it was necessary for the coal company to have a local agent in Stark county upon whom a process might be served. That he informed Mr. Williams that he would accept such appointment. That he never received any appointment or authority to act as agent for the corporation ; that he does not know the postoffice address of such coal company, and he has never notified them of the service of any papers that has been made upon him. The attorney for the plaintiff submitted an affidavit to the effect that, in the litigation during the years past, he has always served upon Mr. Folsom as the resident agent of the coal company.
The complaint in this action is long, covering some fourteen typewritten pages. It recites many of the facts that have heretofore been stated in the opinions of this court. The co-operative company is joined as defendant, but the allegation is that it has no corporate standing; that it has neither a body to be kicked nor a soul to be damned. It alleges that none of the stockholders of the coal company have ever paid anything into the treasury of the companjq excepting the plaintiff. Upon information and belief, that the Investor’s Syndicate and Tappen have acquired and control the majority of the coal company’s stock: It recites the conspiracy of the defendants to place bogus mortgages and liens upon the lands of the coal company and to cheat this plaintiff out of any interest in such lands, and the efforts of the plaintiff through Ktigation in the courts of this state, resulting in the frustration of the defendants’ schemes. It alleges that the corporate life of the coal company expires August 7, 1925; that the plaintiff is the owner of 4.-00 shares of stock therein of the par value of $25 each; that no meetings of the stockholders or directors have been held since March 20, 1899;
Decision. — Upon the oral argument, the plaintiff stated that this proceeding is to be classed as an action in rem. Manifestly, it is wholly such an action, unless the service made upon Mr. Folsom be deemed a personal service upon the coal company. Even if the service of the process upon Mr. Folsom be deemed proper as a personal service upon the coal company, it is further manifest that this proceeding, in its essence, still will remain an action in rem, for the reason that .an action in personam alone against the coal company would not serve to accomplish the allegations and purposes of the complaint, while the proceeding remained an action in rem against the remaining defendants. All of the parties, plaintiff and defendants, are nonresidents. No process was served upon any of the defendants within the state excepting the service made, upon Folsom. The plaintiff maintains that this appeal must be determined upon the theory that the trial court’s order was made as if a demurrer to the complaint had been interposed. No demurrer to the complaint appears in the record. The defendants made a special appearance and motion to quash the proceeding; upon that motion the trial court acted. The trial court’s oi’der may not convert the special appearance made into a general appearance so as to convert the proceeding from an action in rem to one in personam, unless the record demonstrates that the defendants have waived their rights. The plaintiff has characterized this proceeding as an action in rem; it is, in its essence, an action in rem regardless of the consideration to be given to the effect of the service made upon Folsom.
Asa proceeding in rem, it was necessary and essential that the court first have jurisdiction of the res, the property of the defendants. In such proceeding the court has no jurisdiction over the person of the defendants. 12 C. J. 1220; Hughes v. Fargo Loan Agency, 46 N. D. 26, 178 N. W. 997. This proceeding is not an action to determine adverse claims or quiet title. The question of obtaining jurisdiction over the res pursuant to the statutory method prescribed therefor does not obtain. Comp. Laws 1913, § 8144 et seq.; note in 29 L.R.A.(N.S.) 625; Hughes v. Fargo Loan Agency, supra; Fenton v. Minnesota Title Ins. & Trust Co. 15 N. D. 365, 372, 125 Am. St. Rep. 599, 109 N. W. 363; Pom. Eq. Jur. 3d ed. § 335; Arndt v. Griggs, 134 U. S. 316, 33
It remains, therefore, to be seen in what manner the plaintiff has invoked a jurisdiction- over the res in the light of the considerations applied to plaintiff’s alleged cause of action.
The filing of the verified complaint and the affidavit for the publication or service of the summons without the state, even if held sufficient in form was not sufficient to confer a jurisdiction over the res, since no actual lien in fact is asserted except such as might result after proceedings in personam, and the lands were not otherwise placed in custodia legis. The filing of the lis pendens, furthermore, did not confer jurisdiction over the res. This is a mere notice of the pendency of an action, constructive to purchasers or encumbrancers. Comp. Laws 1913, § 7425. Accordingly, the record fails to disclose a jurisdiction over the res. It is unnecessary to determine the sufficiency of the service made upon Folsom, or of the affidavit for publication or seiwice of the summons. It may be noted, however, that the statute under which the certificate of the appointment of Folsom as the resident agent of the coal company was filed with the secretary of state in 1895 was repealed over twenty-five year’s ago. See § 3192, Terr. Laws 1887 (§ 569, Dak. Civ. Code 1877, and chap. 36, Terr. Laws 1885) ; “Repeals” N. D. Rev. Codes 1895, pages 1517 and 1518. Sections 7426, 7428, Comp. Laws 1913, now provide the manner in which the summons may bo served upon a foreign corporation.
Furthermore, in construing the complaint, this court will take judicial notice of its previous decision involving the parties herein, and of its records and the judgments rendered therein. See § 7937, Comp.
The order of the trial court is modified accordingly, and the proceedings ordered dismissed, with costs to the respondent.
Concurrence Opinion
(concurring specially). I am of the opinion that the
I do not, however, agree with the discussion in the principal opinion herein, which relates to the question as to whether this suit is to be treated as a proceeding in rem or in personam. It is my opinion that if the complaint states a cause of action at all, if proper service were had, and if the allegations and prayer for relief show an attempt to charge the lands within the state with a specific equitable lien, or as being held in trust ex maleficio, the rest of the complaint, in so far as it might appear to set forth a cause of action for either a personal judgment or for relief obtainable only through a decree operating in personam, might well, upon demurrer, be disregarded. In modern jurisprudence, where there is a subject-matter, such as property, within the jurisdiction upon which the equities in favor of a plaintiff can be made to operate through an equitable decree, the consideration as to whether the decree proceeds in personam, in rem, or quasi in either, is, in my opinion, too academic to warrant serious attention. See 1 Pom. Eq. Jur. 4th ed. §§ 135, 171, 428, 429; 4 Pom. Eq. Jur. 4th ed. §§ 1317, 1318.
Concurrence Opinion
(concurring specially). It is my opinion that the contentions of the defendants, that the attempt of the plaintiff to acquire jurisdiction over the defendants, by substituted service, was wholly ineffective and void, cannot be successfully denied.
In Johnson v. Engelhard, 45 N. D. 11, 176 N. W. 134; Krumenacker v. Andis, 38 N. D. 500, 165 N. W. 524, tbe subject of service by publication was quite fully considered. The law in this regard, as defined by the two cases above cited, was recognized and followed in the ease of Hughes v. Fargo Loan Agency, 46 N. D. 26, 178 N. W. 997.
We think the contentions of defendants, that there was a lack of jurisdiction, by the failure to properly procure due service of the summons by publication, must be sustained, and the action, for this reason, dismissed.
Concurrence Opinion
(concurring specially)'. In my opinion the service of the summons in this case was ineffectual, and void under the former decisions of this court. See Jablonski v. Piesik, 30 N. D. 543, 153 N. W. 274; Krumenacker v. Andis, 38 N. D. 500, 165 N. W. 524; Hughes v. Fargo Loan Agency, 46 N. D. 26, 178 N. W. 993.
I am further of the opinion that when the complaint in this case is construed in the light of the former decisions of this court rendered in the various actions brought by the plaintiff, Beyer — which actions all grew out of the same original transaction — it must be said that the complaint fails to state facts sufficient to constitute a cause of action.