91 Minn. 352 | Minn. | 1904
This action was brought to determine an adverse claim made to certain real property in the city of Minneapolis, Hennepin county. It stood admitted by the pleadings that plaintiff was in possession under a claim of right, while defendant alleged in his answer that he was the owner and entitled to possession, which he demanded be awarded to him.
There was no dispute over the facts, both parties claiming from the same common source of title — plaintiff’s husband, Joseph R. Clements, one of the defendants in Utley v. Clements, 79 Minn. 68, 81 N. W. 739. The claim of ownership asserted by Mr. Utley, defendant herein, was based upon proceedings in the above-entitled action, whereby he averred he first secured a lien on the property by virtue of a seizure under a writ of attachment, and later obtained complete title through a sale on execution in July, 1900, at which he became the purchaser, and from which there was no redemption. Plaintiff entered into possession after the alleged attachment, and before the docketing of the judgment entered in the action in Hennepin county, and her right to such possession depends upon the alleged existence of certain irregularities in the proceedings, by reason of which she asserts Mr. Utley failed to secure any title whatsoever. It must be conceded that if the attachment was- invalid, as Mrs. Clements alleges, the execution sale cannot affect her right to recover in this action, and also that if the attachment
1. The original action was brought in Fillmore county, wherein defendant Todd then resided. The other defendant, Clements, was a nonresident, and could not be found in this state. A writ of attachment was issued out of the district court for Fillmore county, directed to the sheriff of Hennepin county, and ordering him to attach the property of Clements therein situated, and the property now in controversy' was thereupon attached. The point is here made that the court commissioner of Fillmore county, who, upon an affidavit and approved bond, directed that the writ issue, had no power to act or to order its issuance, because it appeared on the face of the affidavit that defendant Clements was a nonresident; that none of the property sought to be attached was situated in Fillmore county, and, on the contrary, that it conclusively appeared that it was situated in Hennepin county. The claim of lack of power is based upon the wording of G. S. 1894, § 5186, which provides that where the defendant is a nonresident, and the plaintiff proceeds by attaching his property, the action may be brought in any county where the defendant has property liable to attachment. It is asserted that, while this section is directory in form, it is mandatory in fact; that the word “may,” which we have italicized, should be construed as “must,” and with this construction the district court of Fillmore county could not acquire jurisdiction over Clements, and could not and did not proceed against him by attaching his property in Hennepin county; and that the order of the court commissioner was an absolute nullity.
Such a construction of section 5186 cannot be tolerated. Section 5185 applies to actions for the recovery of money, and it is expressly provided that such an action shall be tried in the county in which the defendants, or any of them, reside at the time of its commencement, or, if none of the parties reside in the state, it may be tried in any county designated in the complaint, subject, however, to the power of the court to change the place of trial. From this section, it seems that it is immaterial in what county an action to recover money is brought, for it simply refers to and fixes the place of trial. The original action in question was brought upon the joint indebtedness of Clements and
2. The court commissioner ordered the issuance of the writ of attachment on the day the summons was issued and personal service thereof made upon Todd in Fillmore county, but it does not appear, from an affidavit or otherwise, whether this was before or after the summons was so served; and, relying upon a part of Laws 1897, p. 576 (c. 311, § 2) it is argued that the commissioner was without authority or power to allow the writ until the action was pending, or, in other words, until after the summons had been served upon Todd; attention being called to G. S. 1894, § 5143, as to when an action is pending. ,
In Blackman v. Wheaton, 13 Minn. 299 (326), it was held that it was not necessary that an action be pending at the time of the allowance or issuance of a writ of attachment, and that it might issue simultaneously with the summons, or later; and this is a correct interpretation of the law as it now exists, unless a radical change has been wrought by the enactment of section 2, supra, and court commissioners have
3. According to the certified copy of the writ of attachment filed by the sheriff and recorded in the office of the register of deeds of Hennepin county, the original was signed, “E. H. Prosser, Clerk, by D. W. Bacon,” and for that reason it is claimed that the alleged attachment was ineffectual and of no validity. The law requires — section 4848— that all writs shall be sealed with the seal of the court, and signed by the clerk. The original writ was not exhibited in the court, below, but we must presume it was signed as was the copy. Bacon may have been, and probably was, a deputy clerk. If he was, his signature, as shown by the copy, was sufficient, because the courts will take judicial notice of the signatures of all their officers. Especially will they take notice of the signatures of deputy clerks, whose appointments as such deputies must be approved by the courts. Or the words “by D. W. Bacon” may be rejected as surplusage, and the signature regarded as that of the clerk, Prosser, only. "
It must not be forgotten that this certified copy of the writ was offered in evidence and its sufficiency questioned in the district court of Fillmore county, and that it had attached and affixed the seal of that tribunal. But with the seal of the court attached to the writ, the pre
4. Another point is made, that, as the judgment entered was for $320 less than the amount stated in the judgment docket and recited in the execution, there never has been a valid execution sale of the premises in question. The judgment to be entered, as stipulated by the parties, was for the sum of $26,108.03. There was an error made by the clerk when entering the judgment, arising out of his failure to add interest to the amount of damages, as authorized by the stipulation. Afterward, in May, 1900, by order of the court, based upon another stipulation, the clerk corrected and amended his entries so'as to conform to the facts, all of which appeared in his office. The judgment as amended was again docketed in-Hennepin county, an execution issued, and the property sold in accordance therewith. Even if the original error had been of substantial merit, it was rectified in accordance with an agreement made by the parties and the actual facts, and not the slightest injustice or injury was done to the judgment debtor.
5. This disposes of the appeal, and the rights of the plaintiff in this action to possession of the property were and are subordinate to the defendant’s interests and rights as owner, and the judgment in favor of the latter, from which the appeal was taken, stands affirmed.
Judgment' affirmed.