*1 contended, therefore, re- amendment, Judgment Unsatisfied Fund is reversed it is and overruled. covery the Fund should be from by the provided the increased amounts

amendment.” TEIGEN, KNUDSON, J.,C. and ER- STRUTZ, JJ., ICKSTAD concur. case, supra, is the law of this The Monson case, by we In the Monson which abide. change respect we held with

case amount, key the crucial limitation of time the time when

moment of arose, ac- namely, when the

cause of action

cident occurred. clear that in

Reasoning by analogy, it is Monson, must hold that

following we also residency respect time with the crucial Isadore A. Plaintiff RENNER, occurred. the date when the accident and Respondent, stated, specifically court below As above v. plaintiff held that J. GRUMAN STEEL COMPANY, at the time and creditor was not a resident New Amsterdam Casual on the date of the accident. Defendants ty Company, Corporation, Appellants. argue orally respondent attempted November.il, Civ. No. 8253. that he was a resident on However, 1964, the date of the accident. Supreme Court of North Dakota. appellant contention and resisted this 9, Dec. 1966. in this contends that this is not issue by appeal appeal because it was not raised Rehearing Denied Jan. cross-ap- respondent here did not and the peal. question find that this is not

We appeal, namely, question us on

before

respondent’s the date residence on

accident, but we the evi have reviewed by re support

dence in of such contention support re

spondent and it does

spondent’s that he had residence argument that date. credi plaintiff having

tor not a resident at the time been arose, namely, the date

the cause of action en injured, he was he is not Judg

titled to recover from the Unsatisfied

ment Fund. mere fact of his contri Fund, by pur

bution to the virtue plates, license could not have

chase of

served to establish residence. said

Therefore, the order lower payment

directing *4 Dickinson, Swanson, &

Greenwood respondent. and Lake, judgment. for de- Renner countered Duffy Haugland, Devils with notice & special appearance, appellants contending that the fendants and Casualty court did not have to enter Amsterdam Co. and New Co. judgment against him because a Butz, Rugby, for defendant Ziegler & the summons had not been and Miltenberger. appellant mailed to him at residence his Montana days publication within ten after the first reassignment). STRUTZ, Judge (On summons, statute. On hearing judgment, the notice of motion September In juris- the court determined that it did have an action in the commenced diction, ordered for County district court Pierce Renner Isadore the State A. resident of $1,709.70, and the which had Montana, $1,709.70 for for the sum of attached, necessary been or so much as was wares, goods, merchandise which the costs, set judgment, aside such had sold to Renner. Since ordered sold the sheriff. This debtor not a resident of the State of January 12, was sold the sheriff on Dakota, personal could not be entry notice of and the However, made in this State. were served Renner at his personal property Rugby, certain Pierce Montana, appeal residence in but no County, and a warrant attachment was ever judgment. taken from such secured the clerk the district court *5 from of sheriff, county, of that directed to the Thereafter, appeal when time for in the commanding the sheriff to attach such expired, former present action had the property. Pursuant to writ of attach- such by against action was commenced Renner ment, police Rugby, acting the chief of of Company Gruman Steel and the New J. sheriff, September on the absence the of Casualty Company, Amsterdam had 7, 1960, property seized the of the said undertaking, furnished the attachment Rugby. appears Renner found in It that against the sheriff of sheriff, his office the who was absent from County, Pierce for the conversion Ren- of delivered, when the writ of was property by ner’s selling the under the same did not return to work until some weeks court, order and of the district police, later due to illness. The chief of which Renner alleges to be void. Gru- J. absence, acting during the sheriff for such Company special ap- man Steel made a put padlock a property on but did Renner’s pearance Renner, by in the started action nothing further. sheriff returned to claiming corporation, as a Minnesota it part his office in the latter October of properly was not Dakota served North and, made filed an October attempted when by serving service was inventory in proceeding. the attachment attorneys in proceeding the attachment by mailing copy a of the summons and action, Renner did not but answer such complaint by to its Minnesota address attorney his attempted to make settlement ordinary special appearance, mail. In its by of his offering account Steel J. Gruman J. Company Gruman Steel further sets out Company mortgage property a chattel on the that prior it had the commenced action for attached, together which it had with a money Renner; due from that service in following note which was be due the that action could not be made on Renner March Company J. personally because he was not resident matter, compromise offered to but of Dakota, North but that made service was settlement never was reached. by attaching personal property certain with- Thereupon Company Steel State, by Gruman causing thereafter J. served on Renner a notice of motion for publication affidavit of to be filed and sum- prior published, copy judgment rendered the court in the mons to be with of such Renner, against constituted con- at his action summons mailed to said Renner law; property. If that was address, provided by that version of that sale as Montana Renner, clearly valid, has been entered Renner and, pursuant judgment, prop- cause his of action to such erty by the sheriff. or the sheriff had been sold bonding company which furnished hand, Renner, the other contends proceeding. the former bond in property the attachment of his action the sheriff did was because void creditor, Steel Com twenty days after inventory file an pany, attempted obtain service on the attached, had been defendant, Renner, in the action 32-08-09, North Section .Dakota publication, provided by 4(g), Rule North Code, of the sale- his Procedure. Before Dakota Rules of Civil judgment. therefore made under a void publication, of the summons damages wrongful demanded complaint filed a verified with property. personal sale of such County, Pierce clerk of the district of together stating that the with an affidavit This came on for trial before the case a nonresident of of State Lynch, one judges C. Honorable W. also Dakota. The record shows District, sitting at of the Fourth Judicial of the summons and request written Honorable filing mailed after affidavit Heen, Douglas judges B. one of publication days than ten after not later Second District. Judicial summons, publication first and that mailing was to the defendant at the defendant Gruman place Montana, with his residence having special appearance made a postage fully paid. purpose objecting jurisdiction of brought by the court in the action summons, receipt On defend- juris- it did the trial court held that have *6 appeared specially ant in the action and hear- diction such defendant. After over objected jurisdiction of the to the court ing, entered judgment it that be ordered ground the of that the the summons J. complaint and within not mailed to him was corporation, and the Company, foreign days publication ten after first of sum- the defendant as sheriff valid, objection mons. was because This not County, of and the defendant New Pierce conclusively the shows that such record Casualty Company, Amsterdam complaint summons were mailed within prior bond the the attachment in furnished days publication sum- ten after first of the action. judgment Such was ordered en- mons. Renner, in tered of the in favor costs, $6,861.50 the judg- sum of but the 30, 1960, Thereafter, notice on November ment New against the defendant Amsterdam judgment motion was mailed to the of only Casualty Company sum of was for the defendant, notifying plaintiff him that the $1,709.70, of its attachment bond. the amount 20, court, would on December move the 1960, p. m., at 2 in court- at chambers the judgment From so such the entered on Lake, judgment in house for a Devils order, appealed to defendants all have plaintiff’s complaint in former such this court demanded a trial de and have December, day action. On the 20th of novo. hearing motion came on for before the Douglas appeared Honorable Heen. It B. The be first issue to determined on hearing that court at such the sum- appeal is whether the sheriff’s sale of had been served plaintiff’s property, mons personal under following the de- publication attachment of proposition not stand for the contended property; that the did case, fendant’s defendant counsel. In that this court said: ap- by special except appear not or answer “An judgment, attack on a former pearance objecting jurisdiction of the subsequent action, constitutes a collateral court; objection was without upon prior attack judgment of the merit; found that it did have court duly court entered. Such an attack is jurisdiction of ordered ineffective orig- unless record of entry entry judgment. Notice inal action shows that the court had no Renner on Decem- was mailed to jurisdiction.” [Emphasis provided.] 21, 1960, Montana, ber at address but his appeal no taken judg- was ever from such We believe that exactly what ment. prior record action of Gruman Steel v. Renner does show. jurisdiction on a based was We find that the trial court in the valid attachment of of the defend- present finding proceeding was correct ant, Renner, within State. But prior pro the court in the attachment attachment became because inven- void ceeding did not have to enter tory filed the sheriff within defendant, the judgment against the Ren- twenty days attachment, from the date as ner. This court has held that the failure shown record case. inventory of a sheriff to file an says Counsel twenty days after an attachment renders the invalid, that even if the attachment was entire v. attachment void. Summerfield the sheriff’s issued sale was on execution Paulson, 161, 68 N.D. 278 N.W. 248. See action, on the in the former not also Dickinson v. First National Bank on the action, attachment. This how- Cody, 273, Wyoming, 64 N.D. 252 N.W. ever, was an action in rem. Jurisdiction 739, A.L.R. which we held that dependent the debtor entirely the statute for the attachment of the validity of the attachment. If the at- strictly complied must be with. void, was, tachment was hold we it wholly in the former case was The record discloses that the judg- void. And sale held under a void the attachment proceedings, ment would be void sale. Company, comply not did with the inventory statute. and Dickinson Summerfield twenty days, filed within cases, above, cited rule general follow the required by statute, and so proceeding statutory that a to establish a absolutely void. *7 lien aid the to in collection a debt must of statute, any strictly comply with the void, Since the attachment was was departure requirements material from the the judgment in that was entered the of the statute render the void. proceeding case, in favor of Steel Gruman Com void, If a proceeding may it at J. then be pany, a valid so that the held sale proceed tacked set in aside a collateral on such valid? Counsel for was ing. cite several J. We therefore can come but one conclu- to they North Dakota cases which contend sion: The proceeding in judgment, stand a proposition void, former action was and the judgment case, in once entered a is conclusive and by entered trial in court such by only appeal. Among can be attacked action invalid. they support proposition cite cases in of this (N.D.), The next is the case of v. Schwartz issue to be determined this on Jensen case, however, appeal Renner, 90 N.W.2d 716. This does is whether the a jurisdic- copy of the summons and action had secured present in the corporation by mailed the defendant Gruman Steel to the defendant tion over registered certified mail its last-known corporation. Section or at Company, foreign a Code, postoffice question Century So of 10-22-08, address. Dakota North acquired regis- jurisdiction whether appointment of a court provides for the Company, a au- over corporation foreign each agent tered depends foreign corporation, whether this on within to transact business thorized foreign to attempt corporation of 10-22-10, Dakota such State. Section' it collect in the amount due registered North Dakota Code, provides that transacting from of business agent agent appointed be the shall so may bring this State as to the defendant with- process so upon corporation whom such states, provisions in the of the pro- statute further has a be This section served. part: as reads follows: vision which out of a claim shall arise “Whenever “Whenever claim of shall arise out by a in this state transacted business by business transacted state this transacting business foreign corporation corporation transacting business foreign authority, serv- of without certificate authority, of service without a certificate may upon process be made ice of may any person process be made this person be found within who shall who be within this state act- shall found of, doing an or acting agent state as for, of, ing agent doing or business as ” by ** * for, corporation, such or business corporation, 10-22- [Sec. mailing thereof to 10, N.D.C.C.] by registered or corporation certified attempted If the its account collection of ad- post at its

mail last known office by Renner attachment North Da- dress.” kota transaction of constituted the business registered agent It is conceded by foreign corporation by appointed had been State, attorneys acting its were Dakota. in North agents corporation, then claim acquired Whether plaintiff arising such business depends upon over this defendant whether claim, here transacted the enforce- defendant, legal firm by hiring the of which be ment could made attempt collect Duffy Haugland & process any person found within plaintiff, Renner, account from corporation. acting agent State of such litigation against commencing their in- only fact mere that this was the attempting to secure serv- this State and stance State transacting business personal prop- ice him corporation immaterial. would be him, erty belonging in North Dakota constituted with- the transaction of business jurisdic- overwhelming majority foreign the State ac- bringing tions hold that the mere of an attorneys process so that on the service of tion in indebtedness a State to recover an for the defendant was valid service on obligation doing busi- to enforce an defendant. Corpora ness within State. C.J.S. *8 1836, 52; Hop Corp. that, p. Seavey period The record shows for tions W. § Pollock, 337, 147 months, have of Portland v. 20 the defendant did Wash.2d about six 310; Georgia at- Trust v. Mort representative in State who P.2d Co. sales this Y., 461, 46 gage-Bond collect of N. 203 Ga. and Co. tempted to take orders for it 883; Royal Refining v. Indian Co. the defendant S.E.2d accounts which were due 710, Co., 856; Iola Cal.App. P. However, ever 102 283 company. Oil service was 368; (Okl.), 363 representative. v. Kissee P.2d Neither State Bank made on sales

671 responsible Lanpar (Tex.Civ.App.), Co. for damages v. plaintiff, O’Brien Renner, on ground 483. S.W.2d sale of personal Renner’s 12, January on not Thus, litigation does engaging if 1961,was invalid—if in fact it was invalid— this doing of business constitute because the sheriff possession had in his State, claim of the lawful order purported which to be valid not a arising litigation is claim out of such on face, its based a judgment entered this arising of “business transacted in the case of Gruman by the state” defendant J. v. Renner 22, December Company, foreign trans- order and required him to sell au- a certificate of acting business without the property question. Thus, designated thority. stat- under the . attorneys such com- ute, on the for provide Our statutes for liability on the pany part would not be valid service. acts, sheriff for doing certain and act, for failure to in the line his bringing hold that the We Among duties. these is liability his indebted to recover an action this State failure to process. execute Section 11—15— business doing not constitute ness does provides that: State. The defendant “If the sheriff to whom writ of exe- appeared specially, Company having cution or attachment is neglects delivered said jurisdiction over the having not or levy upon refuses to or sell any prop- defendant, recover which was erty of party charged in the writ against ed it must be reversed. which is liable to be sold, levied or consider whether the We next after being do so the credi- defendant Walter recovered tor or attorney, his he is liable to the He, of sheriff, is valid. Miltenberger, as creditor the value the property.” appeared course, personally served [Emphasis provided.] action, we nothing generally in the so that the action said refers to have heretofore The failure to proper make a against this defendant. levy or return does not injure debtor, but injures the creditor. The sheriff is his office was not in made liable creditor, not to the debtor in the when the writ of attachment whose property being is attached. In the delivered to him for execution. action was case, way inwas no fact, return office In he did not to his injured by the failure of the sheriff to The entire matter thereafter. some weeks file an inventory. fact, In had the sheriff police of handled the chief of n done duty, his the attachment and sale of deputy capacity of Rugby, acting in the Renner’s would have been valid and By time the sheriff for the sheriff. he would have no cause of office; making his the time for returned to How, then, sheriff. hurt he inventory in filing an the fact that the inventory made, was not already elapsed. Acts proceeding returned, and filed? An undertaking had are, however, our acting deputy, his been filed in the attachment proceeding for As a opinion, acts of the sheriff. the amount of Renner’s proceed debt. The acts, rule, general a sheriff is liable for ing was in all things valid face, on defaults, deputy misconduct of his com surely the fact that Renner now may have performance his official mitted in the a claim for the wrongful sale of his property Sheriffs and Constables duties. 80 C.J.S. under void attachment does not damage him p. a(l), § 55— not proof that he damaged by sheriff, The defendant the failure of the sheriff to file an in event, he contends ventory. *9 672 sold, personal property Sheriffs cannot held liable in 80 be As stated C.J.S. 61-a, for anything necessary 249— done which is page

and Constables § proper in the carrying out the of order or constable liability “The sheriff A court. sheriff who executes the order ordinarily process to execute for failure judgment or of the court under such cir- actually sustained injury is limited protected thereby, regardless cumstances is process the issued.” by party having the subsequent action hold- the court in provided.] [Emphasis ing judgment such order and be invalid. to protection in a right the sheriff to party liability the be no to There would executing proper action for acts done in proceeded against, being whose face, process, an order or on does valid its properly attach. sheriff failed to which the depend on ultimate success in the fact, of action has a cause In he now party action at whose instance only the sheriff because his creditor process by the Minne- issued. As said on duty. failure to do his Such failed Price, Supreme sota Court Robinette v. damaged way in no part sheriff of the 521, 214 8 Minn. N.W.2d 800: the fact that injured or Renner. So make Miltenberger “ failed to * * * protected A sheriff is twenty days, as inventory file an justified executing done acts any by statute, create would not process having and orders aof court in favor sheriff part on of the liability subject of the matter when only liability create of Renner. It would process regular is face.” had the writ party who in favor of issued. attachment point would also We the former proceeding, the debt- Renner, contends But or, Renner, protected prop could have his in favor of entered judgment that the erty by having the writ of attachment re against him in leased the filing of undertaking an absolutely void action was prior attachment claim, sum of provided the creditor’s and file to make of the failure because in Section 32-08-19, North Dakota therefore the inventory, and that Code. property under selling his liable for The final to be issue considered this how fail to see judgment. void We appeal is whether the recovered liable can be held defendant sheriff the defendant New property under of Renner’s sale Casualty Amsterdam Company, on the where judgment, even undertaking it had issued in a well-established absolutely void. It action, should be affirmed. or order process, judgment, rule that undertaking provided, which was filed if jurisdiction, apparent having aof among things, other if the owner of pro complete face, affords on its valid property, Renner, such “recovers liability for to sheriff from tection against the plaintiff said if seizure necessary act done its execution. proper or be set Court, we, aside order 122-a, and Constables Sheriffs § C.J.S. Company, principal, Helle, 330; N.D. p. v. Gilbertson New Casualty Amsterdam Company, as 290 N.W. surety, UNDERTAKE, PROMISE AND an AGREE with who executes the said defendant a sheriff Thus pay the said shall and will awarded judgment which order or may all costs that be the sum awarded said may ad defendant and he costs, damages further all sustain and which $1,709.70and exceeding certain reason of said seizure not lien on be a judged sum to sum of ordered One Thousand Seven Hundred personal property and which *10 petition Seventy rehearing. and interest On Cents Dollars and Nine September percent from four at the rate .of STRUTZ, Judge. 6, 1960.” respondent petition

The has filed property was in rehearing of the which he raises two issues: seizure of failure be invalid because held to First, apply properly did this pro inventory, as file his the sheriff to in determining bringing law that an ac- thereupon surety became vided law. The tion for the collection in North debt While, ordi undertaking. liable on its doing Dakota not constitute did of busi- only in the event narily, surety liable is ness in this statutory pro- State within the liable, is principal has been found permitting process visions service on a surety under our attachment not true of foreign corporation which was doing busi- 32-08-06, Dakota North laws. Section ness in the State a certificate of without Code, an under provides for Century which authority ? attachment, specifically gives to taking in Second, pro did right erroneously this court con- the attachment defendant liability strue the the at- first secur against surety without ceed tachment proceedings an for failure to file against plaintiff ing judgment inventory in proceedings reads, part: the action. This section twenty-day limitation? “* * * if n attachment is set aside Issue No. 1 court, may

by order Counsel for argues upon undertaking bring an action growth corporate enormous business obtaining judgment against without first throughout brought the United States has the action which such with it recognition by the courts of the undertaking given.” protection need to afford to local residents dealings corporations, with nonresident surety became liable on its under- citing Section 10-22-01 of the North Da- taking when the attachment was declared provides kota Code. This section judgment against to be void. Thus the foreign corporation that no shall have surety though no is affirmed even right to transact business within the State against was first obtained until it shall have secured a certificate of' principal on the bond. authority to do so. herein, For reasons stated However, we do not believe that the defendant coming into the State to a claim collect reversed; judgment against foreign corporation which a might have sheriff, re- against a resident of Montana constitutes versed; de- and the “doing business” in this State. claim Ca'sualtyCompany fendant New Amsterdam foreign corporation which the brought such suit did not arise out of is affirmed. business done

within the brought State. The suit was only because Dakota the nonresident TEIGEN, J.,C. and ERICKSTAD and State, debtor had in this KNUDSON, JJ., concur. attempted the creditor to attach. in the case of Renner Service v. Gru- MURRAY, J., being a member of man Steel attempted by fil- ing of submission of this an publication the Court at time affidavit alleging case, participate. foreign corporation did not was, agent doing busi- of such State. But property in the *11 event, proceeded corporation that or, any foreign for so fact, ness found in in may process be him. which re- service of made against. says judgment against Counsel Com- personal covered pany plaintiff argues doing in this State corporation had been business itself. attempt- doing But business with- some time. no service was defendant was that the upon any person ed act- was made found in the State the State and that service 10-22-10, as for such provisions ing agent of or business doing of Section under corporation. sec- Century Code. That North Dakota a claim shall provides whenever tion in this transacted”

arise out “business Issue No. corporation is foreign which State transacting business without a certificate The second issue raised on authority, process may be made service of petition rehearing liability of following manner: sheriff for failure the attachment debtor to pro inventory to file an in the attachment be found By serving person who shall ceedings twenty-day limitation agent acting as of or this State is, fixed This we be statute. matter corporation; business for such or

doing lieve, opinion. fully original covered in our only point that, prior We would to process By mailing of such entry corporation registered the defendant proceedings against judg mail, certified it at addressed ment for fail was later declared to be void postoffice address.

last-known inventory ure of the to file an with attempted case was this When by statute, period fixed the trial by serving attorneys for the defendant specifically ju court held that it did have suit, corporation presum- in the attachment In judgment. risdiction to enter such ably attorneys agents were served fact, view of be the sheriff would corporation. nonresident required determine, contrary deci attempted by serving was further Service court, sion of the trial trial court ordinary mail. inwas error and therefore to com refuse showing such service was There is no ply with the court’s order. Where mail, by registered or certified specifically states that it has 10-22-10, Dakota by Section order enters an which the sheriff en Code. forces, the sheriff will not if be held liable the court is in error in such determination. attempted neither hold that We attorney brings good. service was An who petition rehearing denied. under the circumstances found a lawsuit brought the attachment suit KNUDSON, JJ., ERICKSTAD and con- foreign corporation which is not au for a cur. to do in this is not thorized business State