58 N.W. 512 | N.D. | 1894
In this action the summons was served without the complaint. Defendant appeared by his attorneys, who caused notice of appearance to be served upon plaintiff’s attorney, and demanded in such notice that a copy of the complaint be served upon them at Fargo, N. D. Pursuant thereto, plaintiff’s attorney served a copy of the complaint upon-defendant’s attorneys by mail, and duly registered the letter containing such copy of the
The preliminary questions raised are: First. Was the service of the demurrer too late? Second. If such service was too late, was the irregularity in the service waived by the retention of the copy of the demurrer? We are clear that the service of the demurrer was not too late. The service could be properly made by mail. Comp. Laws, § 5329. “In case of service by mail the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence and the postage paid.” Id. § 5330. “When the service is by mail it shall be double the time required in cases of personal service.” Id. § 5331. If the complaint had been personally served upon defendant’s counsel, they would, under the statute, have been required to serve their answer thereto, within 30 days from the date of such personal service. Id. § 4895. But the complaint was served by mail, and it follows, under § 5331, supra, that the defendant had double time
Passing to the merits, we find that the demurrer to the complaint was upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint is as follows: “That on the 27th day of May, 1893, said defendant was, and still is, sheriff of said McIntosh County, State of North Dakota. That as such officer, the defendant, on the said 27th day of May, 1893, in the county aforesaid, at the instance of one Jessie Johnstone, assignee of a certain mortgage, executed June 20, 1888, by Arthur W. Clyde and Bessie T. Clyde, plaintiff herein, upon the northwest quarter of section 27, in township 129, of range 70, situted in said county, and containing 160 acres, did, pursuant to notice of foreclosure of said mortgage by advertisement, make sale of said premises at public auction to the hightest and best bidder for the same, namely, John Johnson, for the sum of $401.37, of which there was required to satisfy said mortgage and all legal costs and expenses of such foreclosure in full no more than the sum of $357.37, and the remaining $51 arising from said sale as aforesaid is surplus, payable to plaintiff, who is entitled to the same as mortgagor, and by virtue of a deed of conveyance of said property so sold, to her made and delivered by said Arthur W. Clyde. Nevertheless defendant has, refused, and still refuses, to pay over to plaintiff the said surplus sum of $51, or any part thereof, although plaintiff has duly demanded the same of him. Wherefore plaintiff demands judgment against said defendant in the sum of- $51, and her costs herein.” It is apparent from a perusal of the complaint that such facts as are attempted to be set out therein are not directly stated, but are only suggested by
But it is asserted that the plaintiff is entitled to recover the alleged surplus because Arthur W. Clyde conveyed the mortgaged pi'operty to the plaintiff by a deed of conveyance made by him, and delivered to the plaintiff. But how does this averment aid the plaintiff, in the absence of an averment stating the time of the delivery of the deed with reference to the date of the sheriff’s foreclosure sale? If, on the day of the sheriff’s sale, the mortgagors were still the owners of the land, a subsequent transfer of the title to plaintiff would not operate to transfer the right to a surplus arising on the sheriff’s sale. The sale fixed the right to the surplus on the day the sale was made. The transfer of the title to plaintiff is of no significance whatever with reference to the right to the surplus, unless it was made prior to the sheriff’s sale. If such transfer was made after the execution of the mortgage, and prior to the sheriff’s sale, the plaintiff would become an assignee, within the meaning of the statute, and in that capacity could sue for such surplus; but there is no such allegation. This, we think is a fatal omission, and renders the complaint not merely uncertain, but bad on demurrer for insufficiency. The complaint is insufficient, because a vital fact is omitted from it. Generally the time at which a material fact occurred is unimportant, and therefore need not be averred. In such cases the fact only is essential, and the date of no importance; but there are cases (and it is obvious that this is one) where time is vital to the right to recover, and in such exceptional cases the fact is unimportant, unless coupled with a statement of the date of its occurrence. In such cases it is elementary that an averment of the time is essential, and the time must be truthfully stated. Bliss, Code Pl. § § 282, 283; People v. Ryder, 12 N. Y. 433. In People v. Ryder, supra, the court say: “If the time when a fact