67 Minn. 242 | Minn. | 1897
This was an action to determine adverse claims to real estate. The summons was served on the defendant, a nonresident, by publication, and the plaintiff had judgment by default. The defendant subsequently moved to have the judgment annulled and vacated as being void because the sheriff’s return on the summons that the defendant could not be found in his county was not filed until the day the judgment was entered. The court granted the motion, following Corson v. Shoemaker, 55 Minn. 386, 57 N. W. 134, and from that order plaintiff appealed.
If Corson v. Shoemaker is to be adhered to, it is conceded that the action of the trial court was correct; but we are asked to reconsider the question, it being claimed that the construction which we placed upon the provisions of G. S. 1894, § 5204, is not only incorrect, but also contrary to the general understanding of the bar of the state; and that, if adhered to, will render absolutely void many judgments upon which depends the title to real estate, or, as in divorce cases, the
“When the defendant cannot be found within the state, of which the return of the sheriff of the county in which the action is brought that the defendant cannot be found in the county is prima facie evidence, and upon the filing of an affidavit of the plaintiff, his agent or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state or cannot be found therein, and that he has deposited a copy of the summons in the post office directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the eases hereinafter specified, the service may be made by publication of the summons by the plaintiff or his attorney in either of the following cases.” * * *
As a result of a somewhat careful inquiry, we have become satisfied that until the decision of Corson v. Shoemaker, the prevailing impression of the bar was that the filing of the sheriff’s return was not a jurisdictional prerequisite to the publication of the summons, but that careful practitioners generally filed it out of abundance of caution, although there were many attorneys who did not, whose judgments would consequently be void under the doctrine of that case. Upon a fuller examination of the question, some reasons have suggested themselves to us why our former construction of the statute was erroneous, or at least of doubtful accuracy. The history of the statute confirms this view.
Prior to 1864 all that was required as a condition precedent to the publication of a summons was an order of the court or judge, which he might grant when it was made to appear by affidavit to his satisfaction that the defendant, after due diligence, could not be found within the territory (state). Pub. St. 1858, c. 60, § 54. Presumably in view of the strict construction placed on this section in Mackubin v. Smith, 5 Minn. 296 (367), the legislature in 1864 amended it so
Under the existing statute, the sheriff’s return cannot be intended as the basis of any action of the court, for no order of publication is necessary. If it is intended (which we do not think) to be the basis upon which the party or his attorney may make the affidavit required by the statute, there is no reason why it should be filed before publication. Under the statute in its present form, in our opinion the only office of the sheriff’s return is, not to authorize the publication, but to support and sustain it after it has been made, being prima facie evidence that the case was one where service by publication was authorized. If this is its purpose, it is apparent that this will be subserved as well by filing it on the entry of judgment as before publication. We do not think that there is much, if any, force in the argument based upon the definition of the word “return.” We con
There is still another reason why Oorson v. Shoemaker should not be followed. While that was the first direct decision on the construction of this statute, yet in several prior decisions (to which our attention was not called on the argument of that case) this court, impliedly at least, assumed that all that it was necessary to file before publication was the statutory affidavit. Barber v. Morris, 87 Minn. 194, 33 N. W. 559; Bardwell v. Collins, 44 Minn. 97, 46 N. W. 315. Attorneys might well have acted on these as expressions of the views of the court upon the construction of the statute. We therefore think that Corson v. Shoemaker should be overruled.
Order reversed.
Laws 1869. c. 73, § 1.