108 N.W. 487 | N.D. | 1906
The plaintiff has appealed from an order vacating a judgment in an action to quiet title and permitting one Ethel May Southard to appear and defend. The action was brought under chapter 5, p. 9, Laws of 1901. The summons was served by publication and named as defendants, “Usher D. Shafer, Syl
The plaintiff urged (1) that the court had no power to open the judgment after one year; (2) that the applicant had not sufficiently excused her default; and (3) that her affidavit of merits was not sufficient. The same objections are urged in this court as grounds for reversal. None of these several questions need be considered. They are all based upon the assumption that chapter 5, p. 9, Laws of 1901, to the extent that it attempts to confer jurisdiction over “unknown heirs” by thus designating them in the published summons, is valid. Since this case was submitted the validity of that portion of the act was before us in Fenton v. M. T. & F. Co., 109 N. W. 363, and we held that as to persons not named in a summons published under the authority of that act the proceedings did not constitute “due process of law,” and that a judgment so
The record in this case shows that as to the applicant for relief the judgment was void. The order vacating was therefore properly made and must be sustained. Such will be our order.