107 N.W. 49 | N.D. | 1906
This is an action to determine adverse claims to real property, commenced and prosecuted to judgment under the provisions of chapter 30 of the Code of Civil Procedure (Rev. Codes 1899, section 5904 et seq.), as amended by chapter 5, page 9, Laws of 1901. Judgment by default was entered in plaintiff’s favor December 7, 1903. The appeal is from an order denying appellant’s application after judgment for leave to answer and defend the action.
On December 2, 1904, appellants served notice on plaintiff’s attorneys that an application would be made to vacate the judgment, and for leave to answer, and also that application would be made for an order to show cause why the motion should not be heard and the relief granted on less than eight days’ notice. On the same day an order was obtained returnable December 5, 1904, requiring the plaintiff to show cause why the relief asked for should not be granted, and the motion therefor heard on less than eight days’ notice. The order, together with the affidavit and the proposed answer, was served on plaintiff’s attorneys December 2d, and service admitted. On the return day the plaintiff appeared by counsel in opposition to the motion and presented a counter affidavit. After hearing both parties, the court made the order appealed from, which, after sundry former recitals, reads as follows: “The court further finds, as conclusions of law, that applicants have not shown such diligence in making their application in time so that the required eight days’ notice might be given of
It is apparent from the record that it was considered in the court below that the propriety of permitting the motion to be heard on less than eight days’ notice was one of the questions involved on -the hearing pursuant to the order to show cause, as well as the merits of the motion. This was plainly a misconception of the question before the court, as well as of the office of an order to show cause. The latter was merely a means of bringing the motion before the court on less than eight days’ notice. Whether such an order shall be granted or not is a discretionary matter which is decided on the applicant’s ex parte showing. After the court has thus permitted a motion to be heard on less than the usual notice, the motion is as fully before the court on its merits as if the full eight days’ notice had been given. If it shall appear on the hearing that -the adverse party has not had sufficient time to prepare for the hearing, his rights can be amply protected by a continuance, if necessary. Although the order appealed from is ambiguous, and might be construed as one merely quashing the order to show cause on the ground that it was improvidently issued and hence was not a denial of the appellant’s motion on the merits, it is quite evident from the whole record that it was intended to be and was in fact a final order on the merits of the motion, which would bar another application for the same relief. That this was the effect of the order is evident from the fact that the record shows that the opinion prevailed in the court below that the appellants were entitled to no relief unless the motion to vacate the judgment was heard within one year after the entry of the judgment. It was for this reason the order to show cause was applied for and granted, and made returnable before the expiration of the year; and the motion to vacate was denied, as disclosed by the order appealed from, because the moving party had “not shown such diligence in making the application in time so that the required eight days’ notice might be given of the .hearing of said motion before the expiration of one year from the entry of the judgment.” No objection was made to the hearing of the motion at the time
The facts which we deem material to the application are undisputed. The appellants are the heirs of Christian Teufel and G. Christian Klink, respectively, both deceased. Christian Teufel died in 1896 at Cleveland, Ohio; and G. Christian Klink died in 1889 at Chicago, Ill. Teufel and Klink, in 1885, acquired the fee-simple title to the land as tenants in common, and each of them died seised in fee of an undivided one-half of it. The title of each passed to their respective heirs, the present appellants, all of whom are nonresidents of this state. The plaintiff claims to have acquired title to the land by virtue of one or more tax sales. It seems that there has never been any administration of the estates of the two decedents in this state; and said Teufel and Klink still appear on the record as the owners of the land subject to plaintiff’s alleged tax title.
The only designation of the defendants in this action was “Christian Teufel and G. Christian Klink and all other persons unknown claiming any estate or interest in or lien or incumbrance upon the property described in the complaint, and their unknown heirs.” The complaint was in the form prescribed by section 5907, Rev. Codes 1899, as amended by chapter 5, page 9, Laws of 1901. It was duly verified and filed. The summons was issued and returned by the sheriff showing the defendants could not -be found. An affidavit for publication of the summons was filed stating that the places of residence of the defendants named were not known; that the last known residence of defendants G. Christian Klink and Christian Teufel was Chicago, Ill.; and that personal services upon said defendants could not be had in this state. Thereupon the summons was published in a newspaper the number of times prescribed by statute. Two copies of the summons and complaint were mailed, one addressed to Christian Teufel, Chicago, Ill., and one to G. Christian Klink at the same place. After the expiration of 30 days from the last publication, proof of ,the substituted service was made and judgment entered by default. All the proceedings seemed to comply in form with the statutory requirements.
It is contended that the proceedings are in all things in strict compliance with the statutory provisions regulating the procedure in this form of action. We deem it entirely immaterial under the circumstances of this case whether the proceedings did or did not comply in form with the statute; and it is therefore unnecessary to discuss that question. Assuming that the proceedings did formally comply with the statutory requirements, and assuming that such procedure could be held to be “due process,” and would
The order appealed from is reversed. The district court will be directed to vacate the judgment, and the action will then stand for trial on the answer served by the defendants. The appellants will recover the costs of this appeal.'