Brettell v. Deffebach

Fuller, J. This is an appeal from an order of the circuit court, made and entered on. the 30th day of June, 1890, vacating and setting aside a judgment by default rendered in said court on the 1st day of July, 1889, in an action purporting to have been instituted on the 1st das'' of November, 1880, involving the right of possession and ownership of certain mining property situated in that portion of Lawrence county designated as the ‘Whitewood Quartz-Mining District.” Nothing to indicate that a suit was pending was ever filed in court until more than 7$ years after the ’ commencement thereof, and on the 2d -day of May, 1888, plaintiff made and presented to the court an affidavit to the effect that the summons was personally served upon the defendants Deffebach and King, by one J. W. Handlin, on the 1st day of November, 1880, and that said summons had been destroyed or lost. Upon this affidavit, and the — 24 — affidavit of defendant Deffebach, that said summons was served upon him by said Handlin on the 1st day of November, 1880, it was ordered by the court that a copy of said summons annexed to such affidavit be substituted for the original summons, and that the same be filed as a record in said action. On the 1st day of July, 1889, a judgment by default was entered, awarding the possession of the property described in the complaint to, and quieting the tittle thereof in, plaintiffs as against defendants, and each of them, and their successors in interest. Within a year thereafter, and on the grounds that there is no proof that the summons was ever served, and that the case has not been prosecuted with reasonable diligence, the respondent Milliken moved the court to vacate and set aside said judgment by default, and in support of such application submitted the records and files in the action, together with his affidavit, the recitals of which, so far as material, will be discussed in the opinion. It appears from the record and the affidavit of respondent above referred to that defendants, on the 4th day of August, 1880, filed in the United States land office an application for a patent to a portion of the property claimed by plaintiff by virtue of certain work done and improvements made thereon as provided by the United States land laws, on the 20th day of June, 1877, and subsequently thereto; that respondent Milliken purchased at judicial sale defendant King’s interest in that portion of the property in controversy known as the ‘ ‘May Belle Mining Claim,” and secured a sheriff’s deed therefor on the 14th day of December, 1882; that on the 18th day of July, 1882, defendant Deffebach deeded his interest in the property to his wife, Elizabeth J. Deffebach, and" on the 29th day of September, 1887, she transferred the same by de’ed to the respondent, who thus succeeded to whatever interest defendants Deffebach and King then had in said property, and on the 19th day of October, 1887, after receiving a certificate from the clerk of the district court that no suits were then pending against said property, and after filing in the United States land office, as — 25 — required by a rule of the department, a certified copy of a judgment of tbe district court dismissing a certain suit which had been previously instituted by this plaintiff affecting the property in question, he entered said May Belle claim in the United States land office, and paid the receiver of said land office $30, in full for all the land embraced within the limits of said May Belle claim, and obtained a receiver’s receipt therefor; that nothing further was done in the premises until Janury 12,1888, when W. H. Jones, Esq., clerk of the district court, certified that two suits were pending against the May Belle claim, one of which was based upon the Rochester mining claim, and the other upon the Father Abraham mining claim. Attached to and made a part of respondent’s affidavit is a certificate of the clerk relating to facts connected with the making of said certificate of suits pending, from which we copy the following: “In United States Land Office, Deadwood District, Dakota. In the matter of Lode M. E. No. Made by James Milliken. Certificate, Clerk Court. Territory of Dakota, County of Lawrence — ss.: I, W. H. Jones, do hereby certify that I am the clerk of the district court of the first judicial district, territory of Dakota, in and for Lawrence county, and also of the United States district court for the same district, and have been such clerk since. That the certificate of suit pending in this matter, given by me on January 12, 1888, was signed at the request of George E. Brettell and Wm. H. Parker, his attorney, upon the following evidences of suit pending, and none others: (1) Messrs. Brettell and Parker, on or before Jan. 12, 1888, showed me the private docket of cases kept by Gilber B. Schofield, Esq., now deceased, formerly one of the attorneys for the owners of the Father Abraham and Rochester mining claims, in which docket was entered (a) the case of George E. Brettell et al. vs. Elisha Riggs, together with an unverified notation of his own that the papers therein were served on August 20, 1880, without stating by whom or in what manner; (b) the case of George E. Brettell et al. vs. Erasmus Deffebach, together with an un — 26 — verified notation that the papers therein were served on November 1,1880, without stating by whom or in what manner; (c) the case of George E. Brettell et al. vs. Erasmus Deffebach, together with an unverified notation that the papers therein were served on November 1, 1880, without stating by whom or in what manner; but that I saw none of these papers in any of these cases at that time, and no such papers had been theretofore on file in my office, so far as I could find after an exhaustive search. That there was nothing in the private office dockets referred to to indicate the nature or subject-matter of any of these cases. (21 Upon January 11 or 12, 1888, W. H. Parker, Esq., attorney for Brettell el al., paid to me, the clerk of court, filing fees in each of the above-named cases, which had not theretofore been paid, and requested that they be docketed, and placed upon the calendar of this court. (3) On January 13, 1888, Messrs. Brettell and Parker, in accordance with .the promises made by them at the time of obtaining my certificate of suits pending, filed in my office a complaint entitled * * * George E. Brettell, Plaintiff, vs. Erasmus Deffebach and John King, Defendants,’ signed by Parker & Schofield, attorneys for plaintiff, which had never theretofore been filed, bears no date whatever, and bears upon it, or with it, no proof or admission of its ever having been served upon any parties. This is the only paper in this case, so far as I can ascertain, on file in my office. There is no summons in the case, and no proof or admission of service thereof, or of any other paper therein. This complaint alleges that the plaintiff is the owner and entitled to the possession of the Rochester lode; that defendants claim some interest therein, adverse to plaintiff, by virtue of the May Belle claim; that defendants filed application for patent to the May Belle lode on August 4, 1880; that, on the 2d day of October, 1880, ■ plaintiff duly filed his protest and adverse claim in said land office, and that this action is brought to determine the right of possession to said property; that the words ‘2d’ and ‘October’ last above are filled in with a — 27 — different kind of ink from the body of the complaint, are of a fresher appearance, and in a different hand. ” On the 27th day of July, 1888, respondent Milliken, appearing specially by his attorneys, Martin & Mason, moved the court on affidavits, the files and records, and certain certificates, to dismiss the summons and complaint filed on the 11th or 12th day of July, 1888, on the following specified grounds: “(1) The court has no jurisdiction of the so-called ‘action,’ for the reason, among others, that there is no proper proof nor service of the so-called ‘summons’ or ‘complaint,’ or either of them. (2) The so-called ‘suit,’ if any such were ever insti-tuted, has long since been abandoned and lapsed by failure to prosecute the same with reasonable diligence, and failure to file any papers in the office of the clerk of said court, as provided by statute and the rules of this court. (3) The so-called ‘suit’ cannot now be' instituted, restored, or maintained, for the reason that the property referred to in the so-called ‘summons’ and ‘complaint’ has long since passed into the hands of the undersigned purchaser in good faith for value, to-wit, the said James Milliken. No lis pendens having been filed in the office of the register of deeds, as required by law, and the said Milliken having no notice whatever of the pendency of the so-called or pretended action. (4) The said suit, if permitted now to be instituted or revived, would tend to cast a cloud upon the title of the said James Milliken, and unjustly compel the institution of a multiplicity of suits to clear his said title from the cloud so sought to be cast upon it.” Although due service upon plaintiff of all the moving papers was admitted by his attorney on the 27th day of July, 1888, the matter was never heard and disposed of, and on the 1st day of July, 1889, the judgment of which respondent complains was rendered without notice to him of an application therefor. While we have omitted, for the sake of brevity and copciseness, numerous exhibits, and an affidavit of plaintiff used in resisting the motion to vacate and set. aside the judgment, and have not attempted to embrace — 28 — herein more .than a synopsis of respondent’s showing in favor of said motion, the entire record, has been kept in constant view, and will receive our careful consideration in determining this appeal. Had the action of the trial court in vacating and setting aside the judgment by default been predicated upon a similar showing at the instance of the defendants named in the action, we are disposed to say without hesitation that the order would be within the scope and exercise of a sound judicial discretion, and should, be affirmed. It is therefore important to consider and determine whether, under the circumstances of this case as disclosed by the record, a person who was not a party to the action, but the real party in interest, at the time the judgment was obtained, can move to have the same vacated and set aside. Under a provision of our statute, a transfer by defendants Deffebach and King of their interest in the subject of the suit would not abate the action, but the same could either proceed and continue in the name of the original parties, or the court could allow the respondent Miliken to be subsituted for such defendants; and, in either event, as the real party in interest, he would have the right, in our opinion, to protect such interest and conduct the defense in all respects the same as the original parties might have done. Comp. Laws, § 4881. Although firmly convinced that disinterested intermeddlers should never be permitted to disturb society and encourage litigation by undertaking to overturn adjudications to which the original parties make no objection, we are disposed to believe that the real party in interest, to whom property in litigation has been transferred, and who is entitled, under the statute, to be substituted in the action, for the purpose of making an effort to avoid a prejudicial judgment, can move, and in a proper case .secure, the vacation of a judgment of that character. Freem. Judgm. (3d Ed.) 92; Insurance Co. v. Aldrich, 38 Wis. 107; 12 Am. & Eng. Enc. Law, 130, and cases there cited. Returning to the- irregularities of which respondent complains, and upon which he measurably relies to sustain the — 29 — action of the trial court in vacating and setting aside the judgment, we observe that the proof of service upon which the court, ordered a copy to be substituted for the original/ summons, so far as the same relates to or affects the defendant King, consists solely of an affidavit made by the plaintiff on the 30th day of April, 1888, in which he states, in substance, that the summons was served upon the defendants personally by one John Handlin, on the first day of November, 1880, and that said summons was lost or .destroyed. Our statute provides that-any person not a party to an action may serve the summons, but the summons must be served, and returned with proof of such service, with all reasonable diligence. Comp. Laws, § 4899. In this case there is nothing to indicate that the original summons was ever returned, either with or without proof of service; neither is there anything in plaintiff’s affidavit upon which the order was made, substituting a copy of the summons for the original, or in the record any where, excusing the person who served the summons from returning the same, with proof of service, within a reasonable time, and under a statute expressly requiring such proof to be made by the affidavit of the person serving the summons, and prohibiting a party to an action from serving such summons, the authority of a plaintiff to make ■proof of service in any event may well be doubted; and, in the absence of an effort to procure proof of service to be made by the person serving the summons, and upon a mere statement that the summons was lost or destroyed, an affidavit of a party to an action, purporting to specify the particular acts and proceedings of another person relative to the service of such .summons years prior thereto is without proper foundation as to admissibility, secondary in its nature, and of necessity uncertain, and therefore ineffectual as proof of such service, and insufficient to confer jurisdiction upon a court of the person of the defendant. Comp. Laws, §§ 4899-4903; Doty v. Berea College (Ky.) 15 S. W. 1063. For the purpose of preventing frauds, and perhaps feuds, none but impartial and disinterested — 30 — officers and persons were allowed to serve an original jurisdictional process at common law, and the legislature has in no manner changed the rule in this state. If an officer, bound by a solem official oath, and required to give a bond for the faithful and impartial performance of his official duties, is by the statute of this state prohibited from serving a summons and making proof of such service when a party to an action, why should a private person, prohibited from serving the summons because a party to the action, be permitted to make proof of such service? There is no difference in principle, and, in our opinion, that which disqualifies an officer disqualifies a private person, and the question can be raised on a motion to vacate and set aside a judgment by default. Toenniges v. Drake (Colo. Sup.) 4 Pac. 790; Cooley, Torts, 222, 223; Filkins v. O’Sullivan, 79 Ill. 524; Busch v. Meacham (Mich.) 19 N.W. 192. Under our view of the case, it is not important to consider the legal effect of defendant Deffebach’s affidavit, made many years after he had parted with his interest in the subject of the suit, in which he states that the summons was personally served upon him by J. W. Handlin on the 1st day of november, 1880. We are disposed to conclude that in an action against joint claimants and purported owners of real property, instituted by a plaintiff to obtain the exclusive possession of and title to said property, a judgment granting such relief against the defendants jointly, one of whom was never served or appeared, in the action, is erroneous, and should be set aside on motion. 5 Am. & Eng. Enc. Law, 474; 1 Black, Judgm. §§ 82, 315, 209, 211. The motion to set aside and vacate the judgment was made and determined within a year after the same was entered, and, while •the action of the court in exercising its discretion is fully sustained on the merits as disclosed by the record, we deem it unnecessary to extend this opinion by a discussion thereof, and the order from which this appeal was taken is affirmed.