203 N.W. 614 | Minn. | 1925
Over date of June 27, 1924, defendant made a motion, appearing specially, returnable on July 8, 1924, to vacate the judgment entered January 18, 1924, and to set aside the service of the summons personally made on defendant in Winnipeg. The motion was based upon the failure of the record to show that a copy of the summons was mailed to defendant as required by section 9234, G.S. 1923, and other grounds unnecessary to mention. This was followed by an ex parte proceeding in behalf of plaintiff in which her counsel filed an affidavit in which he set forth verbatim a copy of an affidavit purporting to have been made by him on October 22, 1923, in which he stated that on that date he had duly mailed a copy of the summons to defendant, which affidavit he said was written on the back cover of the original summons and complaint and filed therewith and that he had seen it there as late as December 6, 1923, but that, upon recent examination, he found that this affidavit had been torn off and was no longer in the files in the clerk's office. On July 5, 1924, the court made an order authorizing the filing of a copy of such absent affidavit, as of October 22, 1923, and to be substituted for the original thereof with like force and effect as said original *117 filed October 22, 1923. On July 15, 1924, defendant's motion on special appearance was granted. The following day plaintiff's counsel filed a new affidavit for service of summons by publication or personal service without the state. On July 22, 1924, the summons and complaint were again personally served on defendant in Winnipeg. Over date of August 6, 1924, defendant, appearing specially, made a motion returnable on August 9, 1924, to vacate and set aside the service of the summons and complaint so made upon him on July 22, 1924. The grounds urged for this motion were the insufficiency of the new affidavit and that the record failed to show that the court had jurisdiction and was based principally upon the fact that plaintiff attempted to utilize the return made by the sheriff filed October 22, 1923. This motion carries with it an affidavit of defendant to the effect that he does not own any property in Minnesota. This part of the affidavit is fully and in form effectively answered by an affidavit of plaintiff's counsel. On August 16, 1924, the motion was granted.
Over date of August 18, 1924, plaintiff served a notice of appeal from the order of July 15, 1924. Over date of August 18, 1924, plaintiff served a notice of appeal from both the order dated July 15, 1924, and the order dated August 16, 1924. We will treat the matter as one appeal embracing both orders.
The personal service of a summons on a nonresident under section 9234, G.S. 1923, is a substitute for the service by publication. It must, therefore, be predicated upon a strict compliance with the statute. Everything must be done to permit the service by publication to be made. When this foundation for publication is put on the record the substituted service may be used. The statute says that the affidavit must show that plaintiff "has mailed a copy of the summons to the defendant at his place of residence, or that such residence is not known to him." We are of the opinion that this statute must be literally complied with in order to support a personal service on a nonresident. Gilmore v. Lampman,
Defendant now argues that this ex parte proceeding was void because no notice was given defendant of the application for such order. He invokes section 9239, G.S. 1923, which says:
"A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, after which he shall be entitled to notice of all subsequent proceedings therein."
Defendant claims this statute entitled him to have notice of the application. He had not answered. He had not demurred. He had not given a written notice of his appearance. Appearance as here used means a general appearance. Otherwise he is not entitled to notice of subsequent proceedings. He came into this case for the purpose of pointing out to the court an irregularity in its proceedings. He did this in form and language so as not to submit to the jurisdiction of the court as to any other matter. He sought to take advantage of the defect above mentioned. He was challenging the jurisdiction of the court. He was a stranger except for the special purpose. It cannot be presumed so long as he appeared specially that he had any further interest in the matter. His appearance discloses his interest in the matter, and his special appearance precludes all other matters. These are the characteristics of a special appearance. In fact such appearance disclaims all interest except that expressly given for such appearance. Clearly, one so appearing, can claim but little consideration from his adversary. Such *119 appearance being limited by the adjective special does not amount to an appearance within the meaning of the statute, hence the defendant was not entitled to notice of the application.
In this case a showing was made by affidavit that satisfied the court that the necessary and alleged absent affidavit, had in fact been made, filed and lost or wantonly removed from the files. The fact that the substance of the lost affidavit was put in a separate paper and not included, as usual, in the affidavit for publication (section 9234, G.S. 1923), was doubtless considered by the trial court. The court was convinced and authorized the filing of a copy of the absent affidavit to replace it. In certain cases the statute authorizes the court to permit a copy to be filed and used instead of a lost file. Section 9399, G.S. 1923. But, aside from the statute, the court has the inherent power, unaffected by lapse of time, to replace its records when lost or destroyed by accident, negligence or wantonness. R.R. L. of W. Ry. Co. v. Sture,
Subsequent conduct of plaintiff in proceeding to make another service upon defendant did not prevent him by waiver or otherwise from prosecuting his appeal from this order.
In the attempt to make a second personal service without the state, plaintiff used the preliminary record made about nine months before, as a foundation for service by publication and filed an affidavit for service by publication in which he stated that he was such attorney and then thus:
"That the defendant is not a resident of the state of Minnesota but that he has property therein and the court has jurisdiction of the subject of the action; that he believes the defendant is not a resident of the state of Minnesota, or cannot be found therein; and that he has mailed a copy of the summons in this action to the defendant at his place of residence, that the defendant is a resident of the city of Winnipeg in the province of Manitoba in the Dominion of Canada, that the sheriff of Hennepin county, Minnesota, has duly determined that the defendant cannot be found in said county and such return of said sheriff is on file herein, that this affidavit is made for the purpose of serving the defendant by publication herein, or by serving him personally with the summons in this action outside of this state."
On the second special appearance defendant claimed, that defendant did not own any property, that the above affidavit was insufficient, and that the service could not rest upon the return of the sheriff made October 22, 1923.
Defendant cannot, on his special appearance, contest or litigate the question of his interest in the property attached. Spokane Merchants Assn. v. Coffey,
It is claimed that the affidavit above set forth is insufficient as being in the alternative by virtue of the clause "that he believed the defendant is not a resident of the state of Minnesota, or cannot be found therein" — and within the rule of First Nat. Bank of Rush City v. Morrow,
The return of the sheriff that defendant cannot be found must be acted upon within a reasonable time. If not another return must be obtained and filed. Our statute expressly limits the time for doing certain things in practice and procedure. An action must be begun not later than 60 days after the issuance of a writ of attachment. Section 9342, G.S. 1923. The delivery of summons to the sheriff for service shall cease to constitute the commencement of the action unless within 60 days certain steps are taken. Section 9199, G.S. 1923. An execution is returnable within 60 days. Section 9420, G.S. 1923. A person must proceed with reasonable diligence to effect service of a summons after it is put in the hands of the officer. McCormick v. Robinson,
The order of the court made August 16, 1924, is affirmed. The order of the court made July 15, 1924, is reversed.
The opinion in no way precludes defendant from moving to have the ex parte order vacated. *123