*1 CANTY V. BOCKENSTEDT defendant, account of slackness of business he took work with another employer until November continued quit when he disability. because imperfect
The commission because of an result of the finds operation performed developed “a December, 1924, plaintiff post-operative causing total hernia, recurring temporary disability, day employe that on the 17th notified the said February, employer insurer such It awarded recurring disability.” compensation for temporary disability February total the day of notice, April day hearing before referee, hospital further medical and service.
The commission does find November 13, 1925, accidental injury disability. caused further his The evidence does not require finding. such It sustains the plaintiff view that the was not original cured of his injury and that as trouble developed, found by though commission, managed Novem- work until ber 13, 1925, and that the disability causing then him to cease work was the result of original injury. Its recurring award for dis- ability is sustained. An attorney’s fee of allowed. $50
Order affirmed.
J. R. CANTY v. WALTER BOCKENSTEDT.1
March 25,835.
No. Question jurisdiction of court’s to decree foreclosure was not raised 1. No issue as to the court’s to render a was, foreclosure of pleadings raised in an to vacate the respond- and remove a cloud on
ent’s title caused
proceedings.
foreclosure and
1Reported in
Nor consent. 2. The to render of the court’s litigated by
of foreclosure was not consent. statutory and to not lost obtain Jurisdiction *2 tax. inheritance personal representative non- a deceased The of 3. attorney general mortgagee of resident tax does not an inheritance G. S. and to deprive the fore- for the court of to render a mortgage. closure of the
Redemption judgment creditor. judg- a of the foreclosure sale 4. The effect give rights purchaser him ment creditor was to all the of a faith of land. peace an officer facto.
Justice of de peace, his who to file bond 5. A elected of fails duly qualified assumes to a and oath with clerk of court act as jure. facto, justice, is an an officer de officer de if not assignee express an of of trust. When becomes trustee mortgage an note for a
6. One who takes of a and express corporation in which he is a trustee of an interested becomes meaning trust within the S. and has a G. bring an to foreclose in his own name. action Appeal Error, p. 4 J. 756 n. C. 21. Peace, 38; p. p.
Justices of 35 C. 452 J. n. 453 n. 51. Cyc. Mortgages, p. 52; p. n. 27 1544 1866 n. 54.
Quieting Cyc. Title, p. 1354 n. 46. Cyc.
Taxation, p. 95n. New. Murray Defendant an appealed from the district court for order county, J., denying his motion for a new trial. Reversed. Nelson,
Henry Horwitz J3. and A. V. appellant. JunMn, Enudson & Meighen, respondent. Bturtz, for 385- BOCKENSTBDT V.
CANTY C. Lees, J. to H. for executed their note
Respondent and his wife 80 acres of land mortgage Stiger and secured the residents the transaction were Murray The county. parties E. Rick- George assigned mortgage note and Stiger Iowa. Illinois and his Rickcords died testate cords Illinois. Chicago, Rickcords E. assigned the to Adelaide executors note and resident to Martin assigned Mee, in turn them Chicago. She recorded. assignments All the were duly Iowa. 1923 Mee payment early taxes faulted of interest and Murray commenced an in the district court filed mortgage. foreclose the On March 17, 1923, and caused affidavit of an order answer, obtained summons, sale to of foreclosure and entered. May 12, proof thereof until of service judgment. Within pursuant property sold Bockenstedt, Walter appellant, /the redemption, respondent, judgment against *3 of clerk office in the and docketed the of the year rendered inten- gave and notice of his August 31, the district court ato subject to from foreclosure sale. The land tion redeem the was mortgagee mortgage. the respondent second Neither nor second Appellant the sheriff and received a certif- paid $6,633.85 redeemed. rents of received the redemption, possession land, icate of the im- profits and years permanent two and made a number of provements. redemption The Mee money sheriff tendered the to who receive refused to it. then this action aside foreclosure brought to set the declared be the redemption proceedings
and and to have himself to alleged land. In his that of owner of the at the time the commencement of the action he the owner was in fee. When not the of the action, the foreclosure Mee was owner Ignorant mortgage. respondent note or that fact, did not defend permitted against but a default to The be entered him. of the and Adelaide E. was Rickcords made without re- obtaining the attorney general,
quired by G. paid S. and no inheritance tax was 1923, 2302, par. 2, state of Minnesota. The in trust to Mee was made for the Iowa Re- Investment which he interested. spondent had an agreement the second with Mee and the owner of mortgage for an extension Pursuant redemption. time conveyed thereto he and his wife the land the second .to enable him to discharge new loan and the first mortgages. second justice judg- rendered the peace who ment not given had oath law. bond or taken the The reasonable value $15,000. of the land is prayed
The relief for was the vacation in the foreclosure the cancelation suit, justice court respondent’s the removal of fore- the cloud on caused title, redemption closure and proceedings. that court found foreclosure
had been rendered without void; and was that peace been elected from term to term had not filed an oath or bond with the clerk of since court 1918; that the certificate of the general required by G. S. had not obtained; appellant while possession of the land he and his wife gave their note for the Travelers Insurance Company by mortgage secured on the land; note fell due appellant paid October 1, 1929; acquire out $8,061.30 judgment, redeem foreclosure sale, improvements make and pay taxes on the land, had received profits. rents and $828.45
Judgment was ordered as (1) follows: For vacation of the judgment of foreclosure and the certificate (2) redemption; claring respondent be the owner of the claims land free from all on the part of appellant; (3) restoring the the mortgage lien of attempted Mee had foreclose; (4) directing the sheriff to disburse money manner: To following appellant *4 $2,232.85and to the Iowa Investment $4,401.
A motion for a new was made and denied and appeal followed.
CANTY Y. BOCKENSTEDT jurisdiction not have that court did (a) contends service attempted foreclosure because the render as proved and not summons was made in Iowa deter- not had theretofore Murray county that the sheriff of statute; Minnesota nonresidents of mortgagors mined that complaint, and that the Murray county; not be found within could until after not pretended summons and of service were proof that the had; (b) was entered and the sale statutory mortgage of the note and Mee because the nullity was (c) that attorney general obtained; certificate of was not mortgage, Iowa Investment real owner the note Company, the Mee that party not made a to the foreclosure not (d) could foreclose did not own; give appellant and did not invalid redeem. jurisdiction as are satisfied that the court’s
We issue of foreclosure render the was raised proof files introduced evidence. The suit were pur- affidavit as Exhibit is an E, service of the identified summons, county, C. Harrison sheriff of Tama porting to be made W. as T. attention Iowa, by Clow, deputy Calling H. as sheriff. court’s E respondent’s Exhibit counsel said: driving we are might keep like to track of what “Perhaps the court this affidavit process (?) outside contention is, at. Our court never the statute and that the fatally defective under state is * ** It an affidavit under that affidavit. is ';í * * think signed by proxy. I don’t is admitted to be make an affidavit the sheriff. He can sheriff can make deputy * * * point That that we have himself. is an affidavit for argued It later.” in mind. can the basis for the contention that the
This is rule is litigated Dennison, consent. The stated in Diamond v. 113 N. follows: Minn. as “This court will evidence is presume, returned, litigate presented intended to other than parties issues those *5 170 MINNESOTA REPORTS 388 the pleadings, unless the clearly intent the record. appears * * * Consent cannot inferred from objection the fact that no particular was made to testimony bearing upon issue, outside competent which was under the actually issues made.” Under rule it must that it not appear be held does parties voluntarily litigated by issue not raised search Murray county diligent
The sheriff of certified that after find them any he was unable to the defendants inquiry or and that were not thereof and had they residents place of publi- abode therein. Thereafter an for service by affidavit cation was made summons was February and filed 1923. The 2, if served, copies served at defendants all, delivery Tama county, Iowa, February 1923. The summons and the 5, alleged proof of service certif- thereof, with and the icate of the sheriff of Murray county, May not filed until 1923, or about two months after was rendered.
In view our conclusion that the neither pleadings raised litigated by nor un- consent, it is necessary to determine whether the service or bad, since there must a new be proper it is to call attention to Haney v. 163 Minn. Haney, 203 N. it was said:
“The existence of the return return of not ais [sheriff’s found] statutory condition upon affidavit of nonresidence will be accepted as a foundation subsequent proceedings. The return and filing its is necessary not to authorize but support and sustain the service. If no such return was now on file, service would fall support.” want of See Easton v. 67 Minn. 69 Childs, also N. W. 903.
Perkins v. Gibbs, Minn. N. W. cited Haney case, dealt with a statute which was amended after the Perkins case was decided. When the foreclosure at suit the case bar was commenced, provided statute the sheriff county which an action is shall determine defendant cannot found be therein before service can made be BOCKENSTEDT
CANTY V. summons copy or delivery tbe publication G. S. 1923, fendant the state. without aby assigned cannot be Minnesota that a
Assuming.
mortgagee without
will of
nonresident
foreign executor of the
clear that the
it is
with G. S. 1923,
complying
aas
pleaded
general must
the certificate
absence
mortgage. The
assignee’s
suit to foreclose
defense
to render
deprive
certificate does
*6
the
plain
proposition
too
sale. This is
judgment
of foreclosure and
it.
require
support
authorities to
to
the citation of
court
wholly
justice
on the
is founded
redeem
right to
Appellant’s
it did
invalid,
the
If
purchased.
he
right
If he
redeem.
on
and he had no
to
a lien
the land
become
rights
all
gave him the
right
redemption
to
the
redeem,
Minn. 537,
land. Martin v.
Baldwin,
faith
of the
purchaser
24 Am.
46 Minn.
71 Am.
488.
filed his bond and oath with
St.
have
Murray county.
It should
village
county
clerk of the
seat of
his elec-
testified to
been filed with the clerk of court.
to
thereafter,
tion in
his re-election
second
every
year
to
criminal
he
civil and
the fact that
had tried and decided numerous
subsequent
in
his election.
cases
each
to
oath
bond
opinion
filing
are of the
that the mistake
the
We
jure,
de
not invalidate
official acts and
if not an officer
that,
did
The fact that Mee the of the ground for the Iowa Investment furnishes the foreclosure upon attack the suit. The with Mee for the be- company was a contract benefit and he trust express meaning a trustee of an within the of G. S. 1923, came right the foreclosure bring and had a suit in his name. own on is liable Appellant personally gave he to the Company. Insurance If he upon pay Travelers is not called money which disposition redemption note, compelled in case is probably correct, ordered mort- subrogated under the would have the to be the note he A acquired thereunder. gage rights whatever made in the should be provision contingency to cover the mentioned action. another trial of respondent prevails upon if judgment, remittitur, Upon going down There must be a new trial. the com- move for amendment of respondent liberty will be at his attach upon forth bases plaint setting the facts suit. in the foreclosure to render the court’s Order reversed.
Pee Oueiam. respondent argument this case,
At of the the conclusion showing that May, affidavits to the court presented former $2,064.77 handed a draft for Murray sheriff of attor- respondent’s appellant and mailed draft to money received for the remainder of the neys herewith, opinion foreclosure sale referred to subsequently draft was returned and that the first mentioned Minnesota, mail the State Bank of the drawer Slayton, *7 never cashed. possession is now the of the bank has draft, appeal presents reason of facts the suggested these It was considering dismissed and should be without a moot only merits. it on appeal does of these we hold that the facts, a consideration
Upon question only. a moot present