203 N.W. 593 | Minn. | 1925
The judgment under attack was made and entered December 14, 1915, and recites "due notice" of the application therefor by respondent Peters. The effort to set it aside is put upon the ground that the judgment roll contains proof of service of the notice by publication but not by posting, the claim being that both publication and posting were required by the statute in force when the judgment was entered. Chapter 503, p. 635, L. 1909. The requirement of that law as to notice is this: "The petitioner shall cause two weeks' publication to be at least ten days before the term at which it shall be heard." Appellant adopts the suggestion made in Jamieson v. County of Ramsey,
Solution of the problem of statutory construction thus presented is not necessary to decision because, upon the hearing of the motion below, proof by affidavit was permitted that notice of respondent's application for the original judgment was given by posting as well *208 as by publication. That proof, accepted by the learned trial judge, puts the matter at rest, because it shows that the judgment is good, even though the statute be construed as contended for by appellants.
The presumptions in favor of jurisdiction do not include one that service was made otherwise than as shown by such proof of service as is part of the judgment roll. Barber v. Morris,
The equities of the case are not controlling but they are persuasive for respondent. The judgment for vacation was over 9 years old when finally attacked by the town board. In the meantime, relying upon it, respondent has made substantial improvements upon the real estate in question, of the benefit of which he ought not to be deprived. It is true that the rights of the public are to be protected, but there is no evidence that any great portion of the public is interested. Furthermore, even though the rights of the public are to be considered, they do not necessarily over-ride those of an individual. They cannot overcome a vested property right. If such a result were usual, it would not be very much worth while to be a member of the American public.
The point has not been presented and therefore is not decided, but this may well be a case where the district court had the power to amend the judgment roll by adding proof of posting under its statutory power, G.S. 1923, § 9203, to "supply any omission in any *209 proceeding, or in the record, or by amendment conform any proceeding to the statute under which it was taken," there being no bona fide purchasers of the real estate in question to be adversely affected.
The order appealed from must be affirmed.
So ordered.