43 Minn. 137 | Minn. | 1890
Lead Opinion
On the 13th day of February, 1874, one Joseph Hodges, an insolvent, filed his petition in bankruptcy and was duly adjudged a bankrupt by the district court of the United States for the district of Minnesota, and such proceedings were thereupon had in that court that one William B. Hale was duly appointed the assignee of the bankrupt, and the register in bankruptcy, on the 15th day of June, 1874, conveyed and transferred to him all the property, real and personal, that the bankrupt was owner of, or in any way entitled to, on the day his petition was filed; and the deed of assignment was duly recorded. On the 1st day of December, 1873, the bankrupt had filed with the register of deeds of Hennepin county a deed- of the premises in controversy here, duly executed in form, by
1. The service of the summons was by publication, and the judgment was rendered upon proof thereof, and upon the plaintiff’s application, in default of any appearance or answer of the defendant in that action. The plaintiff claims that the statutory procedure in the district court was not made applicable to the court of common pleas, and hence that the proceedings for the service of the summons, and the judgment in that court, were without authority of law. But we think otherwise. The requisite authority of the court is clearly implied from the language of the first and ninth sections of the act creating the court of common pleas of Hennepin county, (Sp. Laws 1872, c. 177,) by which it is given equal and concurrent jurisdiction with the district court in all cases arising or triable in Hennepin county; and the court, judge, and clerk are given like jurisdiction, power, and authority in all proceedings therein, and shall perform the same duties as the district court, judge, and clerk. These provisions are to be liberally construed so as to give them full effect in their practical operation, which could only be under the same statutory procedure provided for the district court in both civil and criminal cases; none being specially provided for in the common pleas. No other construction would be reasonable or tolerable. The common pleas as well as the district court would acquire jurisdiction of a defendant, under Gen. St. 1878, c. 66, § 69, when the summons provided for in that chapter had been served either personally or by publication. And, in like manner, a plaintiff would be entitled to apply for judgment in the court of common pleas under section 210, and that court would have the same power to act as the district court, and under the same statutory procedure.
2. It is also claimed that the court had no jurisdiction of an action brought by an assignee in bankruptcy to set aside a fraudulent conveyance of his land by a bankrupt. The action is not in contravention, as we understand it, of any United States statute; and we are unable to discover any valid reason why the assignee claiming
3. By section 5046, Rev. St. U. S., all property conveyed by the bankrupt in fraud of his creditors shall, by virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee. A judgment creditor claiming a lien upon the real property of his debtor may bring an action to remove the obstruction caused by a fraudulent conveyance before selling the property, or he may acquire title by execution sale, and then bring his action. Jackson v. Holbrook, 36 Minn. 494, 499, (32 N. W. Rep. 852;) Wadsworth v. Schisselbauer, 32 Minn. 84, (19 N. W. Rep. 390.) The object is to remove the obstruction, or uncover the property, so that it may be disposed of at the best price, and the proceeds appropriated to the satisfaction of the demands of creditors. That is substantially the nature of the action brought by the assignee against this plaintiff. Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294, 300, (5 Sup. Ct. Rep. 135;) In re Gurney, 7 Biss. 414; Rinchey v. Stryker, 28 N. Y. 45, 31 N. Y. 140. The action was not then an action in personam, but must be classed with actions in rem. The judgment sought to be recovered therein affects the land only, and it was an action where service by publication upon the non-resident defendant was proper, and one which falls within the provisions of Gen. St. 1878, c. 66, § 64, subd. 5. Pennoyer v. Neff, 95 U. S. 714, 733. See Bennett v. Fenton, 41 Fed. Rep. 283.
4. It is further insisted by counsel that the findings of the court of common pleas in that action do not support the judgment. In considering this and several other objections to the validity of the judgment, the distinction between errors and defects which go to the jurisdiction, and render the proceeding wholly void and of no effect, and such as must be remedied in the same proceeding by appeal or otherwise, must be carefully observed. Salter v. Hilgen, 40 Wis. 363, 365, 366. It is not enough that there are irregularities in practice, or unsubstantial variances between the summons and complaint, or
5. In the published summons in that action there was a clerical
6. The proof of the publication of the summons is, we think, sufficient, though there is a clerical error here, also; the affidavit stating a publication of “seven” instead of “six” weeks between the dates of the first and last publications, which distinctly, appear; but the error is clerical and it appears sufficiently clear that it was published six full weeks successively “once a week.”
7. A further error or irregularity in respect to the form of the summons as published is also claimed to be fatal.. The summons and complaint appear to have been issued together and placed in the hands of the sheriff of Hennepin county, for service upon the defendant. ' On the 18th day of August, 1874, he made his return that the defendant could not be found in that county, and the summons and complaint with the return thereon were both duly filed in the office of the clerk of the court of common pleas in the county of Hennepin on the 20th day of August, . 1874. The summons was in the following form:
“State of Minnesota, County of Hennepin. — Court of Common Pleas.
“ William E. Hale, as Assignee of Joseph Hodges, a bankrupt, Biff., vs. Berlah M. Plimpton, Dft.
“Summons.
“The State of Minnesota to the Above Named Defendant: You are hereby summoned and required to answer the complaint of the*144 plaintiff in the above entitled action, which' is hereto attached and served on you, and to serve a copy of your answer to the said complaint on the subscriber, at his office in Minneapolis, in the county of Hennepin, in said state, within 20 days after the service of this summons on you, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will apply to the court for the relief demanded therein, together with costs and disbursements of this action.
“W. E. Hale, Plaintiff’s Attorney.
“Dated August 15, A. D. 1874.”
The affidavit for the publication of the summons was in all respects in due form as required by the statute, and all the conditions precedent to an authorized and lawful publication of the summons were complied with. It will be observed that the provisions of the statute for the publication of the summons contain no direction as to the form or contents of the summons, or the notices to be inserted therein as published. In this respect it differs from the statutes of New York and other states under which certain decisions cited by appellant were made. For instance, the New York Code provided that in cases of publication, “the complaint must first be filed and the summons as published must state the time and place of such filing.” The Wisconsin statute was substantially similar to that of New York. Rev. St. 1858, c. 124, § 10; Taylor’s Stat. c. 124, § 12. The California statutes in relation to the summons and service thereof are also essentially different from ours. After a careful consideration of 'the subject we think the importance of the omission is exaggerated by the plaintiff, and that it does not go to the jurisdiction, but must be treated as an irregularity in practice. The essential requisites of a summons as answering the purpose of process are prescribed by Gen. St. 1878, c. 66, § 53, and these are all found in the summons in question, while §§ 54 and 55 provide that the summons shall also contain certain notices and directions regulating the practice. See McCoun v. N. Y. Central, etc., R. Co., 50 N. Y. 176. Had this summons been personally served on the defendant, the court would unquestionably have acquired jurisdiction to proceed; and if sh
Order affirmed.
Dissenting Opinion
I dissent. I think in statutory proceedings to obtain substituted service, service by notice given through a newspaper, inserting the name “Berlah” instead of the true name “Beulah,” no matter how it occurred, by mistake or otherwise, would vitiate the service. One name is not idem sonans with the other.