Jacob W. GRUEBELE, a/k/a Jake Gruebele, Plaintiff and Appellee, v. Erna GRUEBELE, Defendant and Appellant.
Civ. No. 10386.
Supreme Court of North Dakota.
Sept. 30, 1983.
338 N.W.2d 805
As the Ninth Circuit Court of Appeals stated in United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970), in the context of a case involving stolen property:
“The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect‘s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property. United States v. Teller, 412 F.2d 374 (7th Cir.1969); Ahern v. United States, 382 F.2d 965 (8th Cir. 1967); Anderson v. United States, 344 F.2d 792 (10th Cir.1965); Porter v. United States, 335 F.2d 602 (9th Cir.1964).”
In the instant case we are concerned with a violation of the federal firearms laws and, in particular, with the whereabouts of a rifle allegedly purchased and possessed by a convicted felon. A magistrate considering the affidavit at issue here could logically conclude that a person would keep a rifle in his house. This would be particularly true of a convicted felon who would logically be concerned that his possession of the weapon remain secret. If, as the district court appears to suggest, there is some significance to be drawn from its determination that the rifle might just as logically have remained in the car, it is sufficient to say that the magistrate might well have concluded that a convicted felon would more logically secrete a rifle in his home, than in his car which carries a considerably diminished expectation of privacy and is more readily open to legitimate search by the authorities with a wider variety of justifications.
While we agree that the particular question presented is a close one, we choose to resolve the doubt in favor of sustaining the search, and the judgment of the magistrate. We recognize that determinations of probable cause often fall into a gray area in which reasonable persons might justifiably come to different conclusions. There is no “bright line” test by which to judge the sufficiency of an affidavit. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The facts necessary for a determination of probable cause will necessarily vary from case to case, depending upon the nature of the crime and the objects sought. Upon review of the affidavit in question and consideration of the permissible inferences to be drawn therefrom, we conclude that the magistrate performed his “neutral and detached” function and that his determination of probable cause was not arbitrary. We therefore reverse the district court‘s order suppressing evidence.
ERICKSTAD, C.J., and PEDERSON, VANDE WALLE and SAND, JJ., concur.
Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellee; argued by Ward M. Kirby, Dickinson.
Rosenberg, Evans, Moench, & Baird, Bismarck, for defendant and appellant; argued by LaRoy Baird, Bismarck.
The appellant, Erna Gruebele, appeals from a judgment of the District Court of Hettinger County, dated January 21, 1983, quieting title to the following 640 acres of farmland in Hettinger County:
Township 136 North, Range 91 West East Half of the Southwest Quarter (E2SW4) and South Half of the Southeast Quarter (S½) of Section 8; Northwest Quarter (NW4) of Section 16; North Half (N½) of Section 17.
The appellee, Jacob W. Gruebele, initiated this quiet title action to ascertain the validity and priority of Erna‘s adverse claim to the described real property. Erna claims to be the owner in fee simple of an undivided one-fourth interest in all oil, gas, asphalt, coal, uranium, sand and gravel and all other minerals in and under and that may be produced from the property. The District Court of Hettinger County, The Honorable Allan L. Schmalenberger, decreed that Jacob is the owner in fee simple of the property, free of all claims of Erna, and that Erna has no right, title or interest in and to the land and premises. We reverse the judgment of the District Court of Hettinger County.
On November 8, 1979, a judgment was entered in the District Court of Burleigh County pursuant to findings of fact, conclusions of law, and order for judgment of the Honorable Benny A. Graff entitling Erna to an absolute decree of divorce from Jacob upon grounds of adultery. The court‘s judgment contained the following language:1
“It is FURTHER ADJUDGED AND DETERMINED that the real estate described as ..., all in Township One Hundred Thirty-six North (136N), Range Ninety-one West (91W), Hettinger County, North Dakota, and all of the personal property consisting of farm machinery, grain, and all other personal property used in connection with the farming operation inclusive of motor vehicles shall be sold by a receiver and the proceeds therefrom less expenses of the receivership and other legitimate expenses of sale and any encumbrances thereon being deducted, and the balance thereof divided equally between the parties hereto, less the sum of $800.00 to be deducted from the share of the plaintiff.”2
Service of the notice of entry of judgment was made on November 26, 1979. A partial transcript of the order dated September 20, 1979, clearly reveals the district court‘s “intention ... to divide this property equally among the parties subject to the payment of all debts presently outstanding.”
On November 26, 1979, the district court entered an order appointing a receiver, Jim Raaum, for purposes which included the liquidation by public auction of “all of the real estate of the parties.” Raaum filed an acknowledged surety bond in the amount of $50,000, dated November 21, 1979, and executed an acceptance of receivership on November 26, 1979. Thereafter, Raaum caused the placement of several advertisements in newspapers in the general circulation area of the land. The advertisements included, apparently without written direction from the court, the language: “Mineral rights will be retained by the present owners.”
Jacob was the successful bidder at the May 5, 1980, sale of the real property.3 An order confirming the propriety of the sale by Raaum to Jacob was entered in the District Court of Burleigh County on March 11, 1981. The order directed Raaum to execute and deliver a receiver‘s deed to Jacob. The receiver‘s deed, executed by Raaum and dated March 23, 1981, conveyed to Jacob “all of the estate, title and interest” in the described real property. The deed was recorded on September 18, 1981, in the office of the Register of Deeds in Hettinger County. Neither the district court‘s order confirming the sale nor the receiver‘s deed executed by Raaum contain any language which may be construed as a reservation of a mineral interest in the property.4
On June 2, 1981, the District Court of Burleigh County issued an ex parte order purporting to convey to Erna a mineral interest in the described real property previously conveyed to Jacob by court-ordered receiver‘s deed. The district court‘s order provided as follows:
“Max D. Rosenberg, attorney for the above-named plaintiff, having brought to the court‘s attention that the plaintiff Erna Gruebele is entitled to an undivided one-half interest in and to certain mineral interests in and to the real estate hereinafter described, and having found that the defendant has failed and refused to execute the proper conveyance to convey to the said plaintiff her share of said mineral interests, and it appearing to the court from all of the files and records herein that the said plaintiff is entitled to such conveyance, and having further found that the defendant has refused to execute a mineral deed in favor of said plaintiff, Erna Gruebele, and having determined that it was unnecessary to set a hearing in this matter and having determined that he could act in said matter on an ex parte order, it is hereby
“ORDERED that the plaintiff be and she is hereby entitled to an undivided one-half interest as shown by the records of the Register of Deeds of Hettinger County, North Dakota, in and to all of the oil, gas, asphalt, coal, uranium, sand and gravel, and all other minerals in and under and that may be produced from the ... described [real property].
“It is FURTHER ORDERED that upon the filing of record of this order with the above-named Register of Deeds, it shall constitute and have the same force and effect as a proper conveyance of said mineral interests from the defendant, Jacob W. Gruebele, to the plaintiff, Erna Gruebele.”
Thereafter, because of an error in the legal description of the property in the order of June 2, 1981, an amended order, also ex parte, dated January 11, 1982, and recorded January 12, 1982, in the office of the Register of Deeds of Hettinger County, was entered in the District Court of Burleigh County on motion of Erna‘s attorney.
On January 27, 1982, another ex parte order was executed, amending further the order of June 2, 1981, which purported to
Jacob contends that he first learned of the ex parte orders after receiving a less than adequate delay rental payment from Gulf Oil Exploration and Production Company for an oil and gas lease on the described real property. Upon inquiry, Jacob received a letter, dated March 30, 1982, from Gulf Oil, along with copies of the order of June 2, 1981, and the amended order of January 11, 1982. The amended order of January 27, 1982, was apparently not brought to his attention until he secured updated abstracts of title dated April 12, 1982.
Jacob then initiated a quiet title action by service of summons and complaint on April 26, 1982. The action was heard in the District Court of Hettinger County on December 15, 1982. In her trial brief, Erna alleged fee title ownership of an undivided one-fourth mineral interest in the described real property “based upon the record that has developed concerning the divorce between Erna and Jacob Gruebele.” Erna contended that the ex parte orders of the District Court of Burleigh County were properly entered pursuant to
Judgment was entered on January 21, 1983, pursuant to the findings of fact, conclusions of law, and order for judgment of the District Court of Hettinger County, which quieted title to the described real property in favor of Jacob. The court found that the District Court of Burleigh
Erna now contends that the quiet title action was heard without jurisdiction in the District Court of Hettinger County and, therefore, represents an impermissible collateral attack upon the orders of the District Court of Burleigh County.
The record before us reflects that Jacob did not move, pursuant to
Erna raises the following issues:
- Was the collateral action in the District Court of Hettinger County properly instituted to ascertain the validity of the ex parte orders made by the District Court of Burleigh County?
- If such action was appropriate, did the District Court of Hettinger County properly interpret the divorce decree so as not to entitle Erna to a one-quarter mineral interest in the described real property?
Volume 56, Am.Jur.2d, Motions, Rules, and Orders, § 46, states in part as follows:
“Orders within the exercise of the inherent powers of the court and not absolutely void are not ordinarily subject to collateral attack. But a void order may be attacked collaterally.
“Generally, an order made by a court within the scope of its jurisdiction and regular on its face is presumed to be valid on collateral attack. Jurisdiction will be deemed to exist in the face of a collateral attack unless the record affirmatively shows that the tribunal did not have jurisdiction to make the order in question.”
This court has previously set forth similar principles applicable to the collateral attack of judgments. We have held that a judgment may not be collaterally attacked by a party to the action in whose name it is entered or by one in privity with a party to the judgment. Oakes Farming Association v. Martinson Brothers, 318 N.W.2d 897, 905 (N.D.1982); Hull v. Rolfsrud, 65 N.W.2d 94, 98 (N.D.1954). An exception to this rule is that a judgment may be collaterally attacked if the court lacks jurisdiction to enter the judgment and the lack of jurisdiction is obvious from the record. Oakes, supra; Texaro Oil Co. v. Mosser, 299 N.W.2d 191, 195 (N.D.1980); Lende v. Wiedmeier, 179 N.W.2d 736, 738 (N.D.1970). Thus, in determining whether or not the quiet title action in the District Court of Hettinger County was properly instituted, we must determine whether or not the District Court of Burleigh County had jurisdiction to enter the ex parte order of June 2, 1981, and the amended orders of January 11, 1982, and January 27, 1982.
The divorce decree of the District Court of Burleigh County ordered that the property be sold and that the proceeds be divided equally. It contained no language directing a reservation of mineral interests. We have held that, except for matters over which the court has continuing jurisdiction when there are changed conditions, a divorce decree is final as to all issues litigated in the divorce suit. Zent v. Zent, 281 N.W.2d 41, 44 (N.D.1979); Albrecht v. Albrecht, 120 N.W.2d 165, 167 (N.D.1963). Jacob contends that the ex parte order of June 2, 1981, and the subsequent amendments thereto, modify the previous judgment of the divorce court by conveying to
We have held that a division of property decreed by the court is not subject to modification other than in the same manner and on the same grounds as other judgments. Harwood v. Harwood, 283 N.W.2d 144, 146 (N.D.1979); Nastrom v. Nastrom, 262 N.W.2d 487, 492 (N.D.1978). The following language from the court‘s syllabus in Cokins v. Frandsen, 136 N.W.2d 377, 378 (N.D.1965), is relevant to this appeal:
“3. Any order made subsequent to final judgment must be for the purpose of carrying out the provisions of the judgment. Insofar as any such order attempts to modify such judgment, unless made on grounds provided for in the North Dakota Rules of Civil Procedure for amending or correcting a judgment, and unless made within the time provided for such amendment or correction, it is void.”
Thus, in determining whether or not the District Court of Burleigh County had jurisdiction to enter its order of June 2, 1981, and the subsequent amendments thereto, we look to whether or not the orders were made on grounds provided for in the North Dakota Rules of Civil Procedure.
The District Court of Burleigh County did not specifically set forth its authority for issuing the ex parte order of June 2, 1981, but merely determined that “it was unnecessary to set a hearing in this matter” and that it “could act in said matter on an ex parte order.” Erna contends that the order was issued pursuant to
“(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversights or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders....”
Generally,
A court may correct, pursuant to
Erna contends that the divorce court‘s order of June 2, 1981, was entered “to effectuate the court‘s original intent, as expressed in the divorce decree” and, therefore, is within the scope of
At first glance, it may appear that the sale part of the judgment was carried out when the sale to the highest bidder was confirmed and the receiver‘s deed was delivered. In reality, however, it was not properly carried out as the real property had been advertised for sale with a reservation of the mineral interests which the parties owned and the bid was only for the surface interest. The equal distribution part of the judgment was also affected by the advertising procedure as Jacob bid for the surface and received both the surface and the minerals for the price of the surface. The error could have been corrected through a 60(b) motion under the North Dakota Rules of Civil Procedure providing notice and hearing. Had that been done, the court would have had the alternative of canceling the sale and ordering a new one without the reservation of minerals or of doing what it did, permitting the surface to be sold as advertised with an equal division of the minerals. The main object of the court‘s judgment was not the sale of all the property, but the equal division of it. The sale was only the means of attaining that objective. With this analysis, it is clear that a mistake occurred in carrying out this objective.
Unless an abuse of discretion is shown, a 60(b) order is not normally reversed by this court. Galloway v. Galloway, 281 N.W.2d 804, 806 (N.D.1979); Bettger v. Bettger, 280 N.W.2d 915, 917 (N.D.1979); Gajewski v. Bratcher, 240 N.W.2d 871, 886 (N.D.1976). As the correction of the judgment was done under
In light of the analysis that we have made, although we would have preferred that change be made under
The district court‘s amended orders of January 11, 1982, and January 27, 1982, were also proper pursuant to
Our determination that the ex parte orders of the District Court of Burleigh County were within the scope of
SAND and PEDERSON, JJ., and PAULSON,* Surrogate Justice, concur.
VANDE WALLE, Justice, concurring specially.
I agree that the basic premise of the divorce court‘s judgment was to divide the property of the parties equally, but it also appears that it was the intent of the court that all the property of the parties be sold. The property was, in fact, all sold and Jacob purchased the real property in question. In this respect there was no mistake. However, because the real property was advertised as being offered with a reservation of minerals and because Jacob testified he knew he was not to receive the minerals, the question arises as to whether or not Erna received a fair share of the proceeds of the sale of the property. Although, as the majority opinion notes, there is no evidence in the record to indicate that the bids on the property would have been higher had it been advertised without a mineral reservation, it is apparent the minerals have some value because there is a lease on the minerals and the reduced delay rental payment was the cause of Jacob‘s realization of the divorce court‘s ex parte orders.
I concur in the result reached by the majority opinion because it appears to me that in matters of property division the divorce court is the proper place to determine any mistakes which may have occurred in carrying out the court‘s judgment. Therefore, in the broad sense, I agree that the divorce court had jurisdiction to issue the ex parte orders which gave Erna one-half of the couple‘s interest in the minerals. If Jacob was dissatisfied with this result he could have petitioned the divorce court for a hearing on the matter rather than instituting a separate action before another court to challenge those orders.
Because it is apparent that the divorce court intended that all the property, including the minerals, be sold, the real property should have been advertised and sold without reservation. When the sale, but not the advertisement, was completed without reservation, the divorce court, in an apparent attempt to rectify any possible inequity, determined, ex parte, that an amended judgment should be entered transferring one-half of the minerals Jacob had purchased, which purchase the divorce court had affirmed, to Erna. At that time, it seems to me, the better procedure would have been to give notice to Jacob and permit a hearing thereon. It stretches the intention of
Although equity demands that we reverse the judgment, due process also may demand that Jacob receive notice and the opportunity for a hearing before one-half of the mineral interest he purchased, which purchase the divorce court affirmed, was transferred to Erna. If, as Jacob contends, the advertisement with the mineral reservation had no effect on the bids submitted for the property, he would be entitled to present his evidence, Erna would have the opportunity to challenge his contention, and the judge ordering the sale of the property in the first instance would, most properly, be the one to resolve the issue.
RALPH J. ERICKSTAD
CHIEF JUSTICE
* Justice WM. L. PAULSON served as a Surrogate Justice for this case pursuant to
Notes
“Q. After referring to that newspaper advertisement and when you submitted your bid, you were well aware, were you not, that that bid was being submitted for the surface acreage only, correct?
“A. Right.”