Roosevelt v. Land & River Co.

The following opinion was filed November 16, 1900: BáRdeeN, J. Two propositions are to be considered on this appeal: (1) Did the plaintiff obtain jurisdiction of the trustees and receivers, so as to bind them by the judgment herein? (2) If not, who is entitled to the possession of said premises ? 1. The order of publication was dated June 10, 1898, and was based upon the papers on file, and the affidavit of the plaintiff’s attorney, dated May 27,1898,— fourteen days before such order was made. To meet the requirements of sec. 2640, Stats. 1898, as to the diligence used in making service of the summons, said affidavit referred to the sheriff’s return on file. Such return is undated, but appears to have been filed April 23, 1898. The point is made by appellant that an affidavit made fourteen days prior to the making of the order, the latter being based in part upon a return of the sheriff made six weeks prior, is not a sufficient founda — 658 — tion to support an order for the publication of the summons. Sec. 2640 says that the application for such an order “ shall be based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist.” The question is, When must the “facts required” be shown to •exist? No decision of this court has been cited, and after diligent search none has been found, which throws any light on this question. In other states, however, under similar statutes we find decisions directly upon the point. Thus, in N. Y. B. Union v. Atwell, 95 Mich. 239, it is said: “An order of publication must be based upon facts existing at the time the order is made. The rule that, as matter of evidence, a fact in its nature continuous, being once shown to exist, will often be presumed to continue unless the contrary be shown, does not apply to the averment of a jurisdictional fact, which must appear as existing at the time the order is made.” It was accordingly held that an affidavit of nonresidence made five days before the making of the order would not sustain it. See, also, Adams v. Wayne Circuit Judge, 98 Mich. 51. In Forbes v. Hyde, 31 Cal. 342, it is held that the facts must appear before jurisdiction to make the order attaches, that the making of the affidavit and the order must follow each other in reasonably quick succession, and that an order was not well supported by an affidavit made some four months before it was applied for. Following in line with this case, the same court, in Cohn v. Kember, 47 Cal. 144, held that a delay of fifteen days between the making of the affidavit and the application for the order could not be permitted. A brief discussion of the same question may be found in Armstrong v. Middlestadt, 22 Neb. 711, where the affidavit was made on March 5th, and the order on the following day, and the order was held good. In Campbell v. McCahan, 41 Ill. 45, an affidavit of nonresidence made twenty days before the bill was filed was held not made in a reasonable time before the suit was brought, and failed to confer jurisdiction. In — 659 — an attachment proceeding the affidavit was made August 2d, and was filed and the writ issued eleven days thereafter, and it was held that such delay was unreasonable. Foster v. Illinski, 3 Ill. App. 345. The tenor of all these decisions is that the proceeding to obtain jurisdiction of a nonresident is statutory and must be strictly complied with. This court has so held, and the cases •on this point may be found cited in Beaupre v. Brigham, 79 Wis. 436. Such being the rule, it is quite proper to say that the “ facts required to exist,” mentioned in the statute, must be shown to exist at the time the order is made. Not that the making of the affidavit and the order must follow in instantaneous succession. The two acts need not be simultaneous, but must follow each other in reasonably quick succession, and what is a reasonable time is to be judged by the situation of the parties. In this case the affidavit and order appear to have been made in Douglas county. As to the diligence used in making service, the affidavit refers to the sheriff’s return filed six weeks prior to the order. No ■reason is given why there was a delay of two weeks between the making of the affidavit and the order. If he may delay two weeks, he may delay any number of weeks. This would not be in harmony with the spirit of the law or the intention ■of the legislature. We therefore hold that the record shows an unreasonable delay intervening the two acts necessary to confer jurisdiction, and that the order of publication had no sufficient basis to rest upon. Counsel for the plaintiff suggests that the order must be held sufficient under sec. 2641, which makes it presumptive proof of the existence of all facts required to exist to authorize the same to be made, and conclusive in all collateral actions or proceedings. A sufficient answer to this claim may be found in Manning v. Heady, 64 Wis. 630, which holds that this section does not apply to a case where the record -shows that the order was made upon insufficient or defective proof. — 660 — Tbe claim, that the attorneys for the trustees appeared, and thus jurisdiction was obtained, is too flimsy to require discussion. It requires something more to constitute an appearance in a case than a consultation of the attorneys of the parties, and a threat by one to appear unless the complaint is amended as to the claim against his clients. 2. The plaintiff never having secured jurisdiction over the holders of the second mortgage, we are left to consider the rights of the parties with reference to the mortgaged premises. The plaintiff insists that, because the fee or equity of redemption was still in the land & River Improvement Company at the time his action was commenced and notice of Us pendens was filed, the holders of the second mortgage, or their grantees, obtained no right of possession under their foreclosure proceedings, except in subordination to his rights. If this is so, it must be upon the theory that the doctrine of lis pendens applies to and binds all parties who claim under the foreclosure proceedings in the United States court, and upon that theory the only right the appellant would have left to it is a right of redemption. It must be admitted that if the rule of lis pendens does apply, as claimed, then the conclusion reached by respondent is correct. But does it apply to appellant under the circumstances set out in the statement? Here are two separate and independent foreclosure sales, under two mortgages, both being in existence before suit was commenced upon either. ' The holder of the second mortgage brings the first suit, and a foreclosure judgment is entered the day after this suit was commenced, and before Us pendens was filed. In that suit the holder of the equity of redemption or legal title is made a party, and a sale" is had a few days after the lis pendens was filed. At that sale there can be no doubt but that the purchaser obtained the legal title to the land, and all the interest of both the mortgagor and mortgagee therein, subject to the prior mortgage. Speaking on this subject in an early case, this — 661 — court said: “ Whatever estate or title the mortgagee had in the mortgaged premises became merged in the decree, and passed to the purchaser at the judicial sale. Whatever estate or title the other parties to the sale had at its commencement passed by the same act to the same party. Such, it would seem, must be the necessary and inevitable consequence and result of the decree of foreclosure and sale, if any effect whatever is given to them.” Tallman v. Ely, 6 Wis. 244. This principle is referred to and approved in the late case of Ames v. Storer, 98 Wis. 372. Hence it follows that by its deed from the purchaser at the foreclosure sale the appellant became invested with the legal title and right to possession of the mortgaged premises under a claim which existed prior to the time this suit was brought. The respondent having failed to make the holders of the second mortgage parties, as already determined, they were not barred or cut off by the proceedings in this action, unless, as respondent claims, they were cut off by the filing of the notice of the pendency of this action, under sec. 3187. This section • says, “ Erom the time of such filing, . . . the pendency of such action shall be constructive notice thereof to a purchaser or incumbrancer of the property affected thereby.” The precise question here involved has been under consideration by this court in two cases. Murphy v. Farwell, 9 Wis. 102, and Allen v. Case, 13 Wis. 621. The reasons for the conclusions there reached are so fully and carefully stated that an attempt to add to the discussion would lead to no useful results. The substance of those decisions is that, when a sale of the mortgaged property takes place in pursuance of an interest in the property acquired before the suit was commenced in which the notice of Us pendens was filed, the purchaser at such sale is not within the rule of Us pendens unless he or the holder' of the interest was a party to that suit. Whether this rule is in harmony with that established in other states, it is not our purpose to inquire. — 662 — It is the rule in this state, and no good reason is perceived why it should not be followed. It being determined that the rule of lis pendens does not apply to the appellant, it is clear that when the sale was made herein the entire interest of the mortgagor had passed to it under its deed from De Forest and hence no possessory right, as against its title, passed to the purchaser at plaintiff’s sale. Other questions are raised, but none of which is of sufficient importance to change the result reached, or to require extended discussion. By the Court.— The order appealed from is reversed, and the cause is remanded with directions to the circuit court to discharge the order to show cause, and for further proceedings according to law. A motion for a rehearing was denied February 1,1901.