Gemmell v. Rice

Wilson, Ch. J. By the Court If in the suit to foreclose the Miller mortgage Habieht was served with the summons, he became subject to the jurisdiction of the Court, and is bound by its judgment; and the plaintiff, standing in his shoes, cannot maintain this action. That judgment being regular in form, and having been rendered by a court of general jurisdiction, is presumed to be valid until the contrary is made to appear, and this presumption — entertained in favor of the judgment of every court of general jurisdiction — is strengthened by the facts and circumstances surrounding this case. The Court below, having tried this cause without a jury, found and decided as a matter of fact, that R. B. Gralusha was on the 18th day of May, 1860, ever since has been and now is, an attorney of this Court; “ that on the 18th day of May, 1860, the said Gralusha served on the attorney for the plaintiffs in said action brought to foreclose the said mortgage, executed and delivered by the said defendants to Joseph Miller, Jr., a notice in writing, setting forth that [404] the said Habicht had an interest in a portion of the land in the said mortgage and in the decree in the said action, and demanded that that portion of the said land upon which the said Habicht had no. claim, should be 'first sold under the said decree, and before resorting to that portion of the premises which was included in his mortgage, and which had been foreclosed by him; that the said notice was signed by B. B. Galusba, attorney for C. Edward Habicht, in the proper -handwriting of the said Galusha; that on the- 21st day of November, A, JD. 1860, a stipulation was filed in the said action, * * signed by said E. B. Galusha as the attorney for the said Habicht, and'the attorney for the plaintiffs therein, stipulating that the said plaintiffs might forthwith apply to the said Court for a confirmation of the sale in the said action, waiving notice of application therefor, and providing that the said order of confirmation should have the same effect as if made on the usual application to the Court in term; that save as above stated, there was no appearance in said action by the said Habicht.” It is not to be presumed that Galusha assumed to act without authority, and his acts are therefore to be considered the acts of Haoicht. These written demands and stipulations of Habicht in that action, show not only that he was aware of the proceedings against him, but that he considered those proceedings binding on him. It will be observed, too, that these are not the unguarded acts of one not learned in the law, for he spoke and acted only through his legal adviser. Tie thus tacitly admitted that the Court had acquired jurisdiction, so as to have the right to bind him by its adjudications in that action. The presumption that the Court had acquired jurisdiction of Habicht, which arose from the rendition of the judgment against him, and which was strengthened by the length of [405] time which the judgment' had stood unquestioned (it was rendered more than six years before this action was commenced), and by his implied admissions, could not be overcome, except by the most clear and convincing evidence to the contrary. Such evidence the plaintiff did not adduce. .If we follow the earlier decisions of this Court, we think the affidavit of Geo. L. Otis, Esq., found in the judgment. roll, can not be held sufficient to warrant the Court in ordering a service of the summons by publication in that action, and therefore we hold that affidavit insufficient. And we think it may fairly be presumed from the fact that it and no other affidavit is found in the judgment roll, and that it ap* pears to have been made before the Judge on the same day on which he ordered the publication of the summons, that the order of the Judge was based on it alone. But it was not' sufficient for the plaintiff to raise such a reasonable presumption. It was for him, having the affirmative of the issue, to overcome what we consider a stronger presumption. Every person familiar with the practice under the laws in force in i860, must remember that it was not uncommon for the Judges, on an application for an order of publication, to require a new or supplemental affidavit, if the one presented as the basis of the order was deemed insufficient. Nor was it uncommon to apply for such order on more than one affidavit, or, after the order had been granted, to make, when possible to do so, personal service on the defendant. The plain-, tiff has relied solely on the presumption that the judgment roll contains all the affidavits, and the proof of any service that may have been made. This we think would be a fair and reasonable presumption, in the absence of any evidence or presumption to the contrary; but it was for the Court below to say whether it was sufficient to overcome the presumptions and evidence in favor of the judgment. The Court [406] passed on this question, and we think rightly decided against the plaintiff. The ground on which the judgment in that action is attacked, is not thatit is unjust. The plaintiff’s grantor had full notice of the proceedings as' they transpired, and the error alleged and complained of did not in any respect prejudice him. The property, sold under the mortgage' has since the sale passed through several hands. Under these circumstances, the plainest dictates of justice, and the teachings and maxims of both law and equity, forbid the Courts, on doubtful evidence, to declare void a judgment on which the rights of many innocent persons may depend, in favor of a party who has so long slept on his rights. These views are not inconsistent with the decision in Mackubin & Edgerton vs. Smith, 5 Minn., 367. In that case a motion was madein the same action to vacate the judgment, and it was not questioned but that the publication of the' summons — which was the only service claimed — was ordered on the affidavit presented'to the Court. The case of Harrington vs. Loomis et al., 10 Minn., 366, is also distinguishable from this, for in that case it appeared that there was no service of the summons except by publication, and that the publication was ordered on the affidavits in the judgment roll referred to in the opinion of the Court. While we do not here question these cases, we think the Courts can not safely go further in the direction which they tend. Judgment affirmed.