hostility which might be expected to prompt him, if he was fraudulently attempting to evade the payment of the judgment, to conceal the truth when personally interviewed, upon the subject. He knew, too, that the law afforded searching, and presumably effective, means, subsequent to execution, for the discovery of property which, by legal or equitable proceedings, might be appropriated to the satisfaction of his demand. But the plaintiff appears to have accepted the bare statements of the debtor, as to his property and the good faith of his conduct, in place of the legal remedies provided for the very purpose of searching out the truth, discovering fraud, and disclosing concealed property; and so he suffered the 10 years' period of limitation to run. This he was at liberty to do; but, as was said in Morrill v. Madden, he did it at his peril. This was not reasonable diligence for the enforcement of his judgment. Presumably, if proper proceedings had been taken, what is now alleged respecting the property of the debtor would have been disclosed. The plaintiff contends that the lapse of time has not prejudiced the right of action here asserted, because, upon the facts alleged, the law implies and declares a trust in favor of creditors, as respects the land in question. The rule exempting cases of trust from the operation of statutes of limitation is not applicable to resulting trusts of this nature, which do not involve the peculiar confidential relations generally subsisting between trustees and cestuis que trust. Howell v. Howell, 15 Wis. 55; Wilmerding v. Russ, 33 Conn. 67; McClane v. Shepherd, 21 N. J. Eq. 76; Farnam v. Brooks, 9 Pick. 212, 242. The plaintiff is therefore not entitled to the equitable relief sought. As respects the judgment for costs in this court, the result is the same. That judgment was still in force when this action was commenced, but it had expired before the cause was brought to hearing in the district court. It was held in Newell v. Dart, supra, that a judgment is not kept alive by the pendency of an equitable action to enforce satisfaction, and that the expiration of the judgment pending such an action terminates the right of action. As respects the alleged fraudulent conduct of the defendant, what has been said above is applicable to both judgments alike. But, as this latter judginent was still a valid obligation when this action was commenced, we discover no reason why, upon the facts alleged, the plaintiff was not entitled to recover a renewed money judgment against the judgment debtor; and for this cause the judgment for the defendants, ordered upon the pleadings, is reversed as to the defendant Joseph P. Wilson, and affirmed as to the defendant Mary P. Wilson. GODFREY v. VALENTINE. (Supreme Court of Minnesota. November 7, 1888.) 1. PROCESS-SERVICE BY PUBLICATION-PROOF OF SERVICE-PRESUMPTION. The record of judicial proceedings stating the manner in which the summons was served (by publication) against a non-resident defendant, who was personally beyond the jurisdiction of the court, it will not be presumed that other proof of service was made to the court than that shown in the record and recited in the judgment, nor that the court acquired jurisdiction, unless that is affirmatively shown. 2. SAME-PROOF-SUFFICIENCY. Ullman v. Lion, 8 Minn. 381, (Gil. 338,) and Golcher v. Brisbin, 20 Minn. 453, (Gil. 407,) followed, to the effect that proof of publication for "six successive weeks" does not show the publication to have been made "once in each week" for the period named. 3. APPEARANCE-EFFECT-JUDGMENT VOID FOR WANT OF JURISDICTION. Curtis v. Jackson, 23 Minn. 268, overruled upon the point that an appearance in court after the rendition of a judgment which is void for want of jurisdiction is effectual to render that judgment valid. (Syllabus by the Court.) Appeal from district court, Ramsey county; BRILL, Judge. Berryhill & Davison, for William Valentine, appellant. E. R. Holcombe and H. L. Williams, for William J. Godfrey, respondent. DICKINSON, J. This is an appeal by the defendant from an order denying a motion to set aside a judgment entered against him in the district court in August, 1883, the defendant never having appeared in the action. The motion raised the question of the jurisdiction of the court. After proper proof of the non-residence of the defendant, and of want of knowledge as to his place of residence, the summons was published in the St. Paul Daily Globe, and, upon proof by affidavit of such publication, and of the defendant's default, the cause was brought to hearing and judgment. The asserted jurisdictional defect is that the summons was not published "once in each week" for six consecutive weeks, as prescribed by the statute. The affidavit of publication, embraced in the judgment roll, states that the summons was published in the St. Paul Daily Globe "for the period of six successive weeks, commencing on the 23d day of June, 1883, on which day last mentioned it was first published, and ending on the 4th day of August, 1883, on which day last mentioned it was last published * * *" This affidavit is referred to in the judgment itself as the proof of service upon which the court entertained jurisdiction. The statute provides that proof of service by publication shall be made by affidavit, (Gen. St. 1878, c. 66, § 68,) and (in case the judgment is upon default to answer) that proof of the service of the summons be incorporated in the judgment roll. Id. § 275. It will not be presumed that there was other proof of service than that thus shown in the record, nor, in an action against a non-resident who is shown to have been personally beyond the jurisdiction of the court, will it be presumed, the question being directly presented, that the court acquired jurisdiction by substituted service, unless that is affirmatively shown. Barber v. Morris, 37 Minn. 194, 33 N. W. Rep. 559; Brown v. Railway Co., 38 N. W. Rep. 698; Morey v. Morey, 27 Minn. 265, 6 N. W. Rep. 783; Galpin v. Page, 18 Wali. 350. Following the decisions in UNman v. Lion, 8 Minn. 381, (Gil. 338,) and Golcher v. Brisbin, 20 Minn. 453, (Gil. 407,) we must hold this affidavit of publication insufficient to show a publication "once in each week" for the prescribed period. This conclusion is also sustained by Hernandez v. Creditors, 57 Cal. 333. The respondent relies in support of the judgment upon the rule declared in Curtis v. Jackson, 23 Minn. 268, to the effect that the appearance by a party, unless limited to mere jurisdictional questions, cures a want of jurisdiction as to a judgment previously rendered. The propriety of that rule with respect to an appearance after judgment, and for the purpose of securing relief from the judgment, was doubted in Kanne v. Railway Co., 33 Minn. 419, 421, 23 N. W. Rep. 854. The doctrine of Curtis v. Jackson, to the full extent expressed in that decision, cannot, we are satisfied, be sustained upon principle. Upon an application to set aside a judgment shown to have been absolutely void, because the court had acquired no jurisdiction in the cause, an objection distinctly made upon that ground should not be deemed to have been at the same time waived from the fact that the moving party also urges in support of his application additional reasons not inconsistent with the alleged want of jurisdiction, nor because, by asking to be allowed to file an answer as in a pending cause, he indicates his present willingness to submit himself to the jurisdiction of the court, in order that, after a hearing upon the issues thus presented, the court may proceed to judgment. The course of the moving party in thus seeking to have a void judgment set aside, to which relief he is entitled as a matter of right, but at the same time consenting and asking that the court shall now hear and adjudicate upon the cause, may justify the court in entertaining the cause and proceeding as in an action pending in which the defendant has voluntarily appeared. But in thus urging his legal right, and thus invoking and consenting to the future action of the court, the moving party should not be deemed to have conferred jurisdiction retrospectively, so as to render valid the previous judgment, which, being unsupported by any authorized judicial proceedings, was not merely voidable, but void, and in legal effect a nullity. Gray v. Hawes, 8 Cal. 563; Shaw v. Rowland, 32 Kan. 154, 4 Pac. Rep. 146; Boals v. Shules, 29 Iowa, 507; Briggs V. Sneghan, 45 Ind. 14; State v. Cohen, 13 S. C. 198; Moore v. Watkins, 1 Ark. 268. Order reversed. D. M. OSBORNE & Co. v. WILLIAMS. (Supreme Court of Minnesota. November 12, 1888.) 1. JUDGMENT-RES ADJUDICATA-NEGOTIABLE INSTRUMENTS-CONSIDERATION. A chattel mortgage was given to secure two promissory notes. The mortgagee brought an action against the mortgagor to recover possession of the mortgaged property. In that action the defendant alleged as a defense only, and got a verdict on it, that there was a failure of consideration for the notes and mortgage. Held, this is no bar to a counter-claim based on such failure of consideration, in an action on the notes, brought by the same plaintiff against the same defendant. 2. APPEAL-PRACTICE-RECORD. Error cannot be alleged upon, nor irregularity or misconduct of the trial court shown (on appeal) by, any statement of what took place at the trial contained in the findings of fact filed by the judge of the trial court. (Syllabus by the Court.) Appeal from district court, Grant county; BROWN, Judge. Action by D. M. Osborne & Co. against James E. Williams to recover on certain promissory notes. The answer set up an alleged failure of warranty. Plaintiff contended that the same defense had been set up in an action to recover possession of property covered by a chattel mortgage given to secure the same notes. 35 N. W. Rep. 371. Judgment for defendant, and plaintiff appeals. Russell, Emery & Reed, for appellant. J. W. Reynolds, for respondent. GILFILLAN, C. J. The matter alleged in the reply was no bar to the counterclaim set forth in the answer. This action is to recover upon the promissory notes made by defendant to plaintiff. The counter-claim was based on an alleged warranty by plaintiff to defendant of a harvesting machine, which formed the consideration for the notes, and which warranty failed. The reply sets up that a chattel mortgage was given by defendant to plaintiff to secure the said notes; that this plaintiff brought an action against defendant to recover possession of the property covered by the mortgage; and in the answer in that action defendant alleged the same matters as in this action as the consideration for the notes and mortgage, and the failure of the warranty; claiming that by reason thereof there was a total failure of consideration for said chattel mortgage, and that in that action the defendant had judgment. The counter-claim was not, and, under pleading in the former action, could not, be litigated. That action was in replevin. The plaintiff's claim to the possession of the property was based on a chattel mortgage. The matters showing a want of consideration were pleaded for the purpose of showing that the mortgage was void, and that therefore the plaintiff was not entitled to the possession of the property, merely as a defense, and not for the purpose of recovering affirmative relief by reason of the breach of warranty. So that, conceding, what is not entirely clear, that the counter-claim might have been set up and litigated in that action, it is enough to say it was not. From the statement of the case it appears that the cause was submitted on the record in the former action, including a statement of the case containing all the evidence. That that evidence was sufficient to justify a finding that the machine for which the notes were given in part payment was of no value, was de-. cided when the former action was here. The point made that the court below erred in permitting the verdict and decision of the court on a motion for a new trial in the former action to have any influence on the finding as to the value of the machine, on the ground that, according to the stipulation between the parties, only the evidence on the trial of that action was submitted to the court for its consideration, is not sustained by the record. The statement of the case shows that the entire record in that action was submitted to the court, and it does not show that there was any agreement excluding any portion of the record from the consideration of the court. That there was any stipulation is not shown by the statement of the case. That there was one is stated in the findings of the court. But what took place at the trial must be made to appear by a bill of exceptions or statement of the case, and not by the findings of fact. Bazille v. Ullman, 2 Minn. 134, (Gil. 110;) Stone v. Johnson, 30 Minn. 16, 13 N. W. Rep. 920; Coolbaugh v. Roemer, 32 Minn. 445, 21 N. W. Rep. 472. The point cannot, therefore, be considered. Order affirmed. STATE v. WINONA & ST. P. LAND Co. (Supreme Court of Minnesota. November 12, 1888.) TAXATION-ASSESSMENT-OMITTED TAXES-PENALTIES. Section 113, c. 11, Gen. St. 1878, as amended by section 1, c. 5, Laws 1881, provid 2.W.474.ing for assessing taxes upon property for past years in which such taxes' had not been assessed, does not authorize the including in such assessment of penalties for 37.W.1152. such years. (Syllabus by the Court.) Appeal from district court, Brown county; WEBBER, Judge. Action by the state against the Winona & St. Peter Land Company to re- GILFILLAN, C.J. The point made by the defendant that the lands involved were exempt from taxation was decided adversely to the defendant in State v. Railroad Co., 21 Minn. 472, and State v. Webber, 37 N. W. Rep. 949, which decisions we adhere to. Following the decision in the latter case, we hold that the statute of limitations is no bar to the right of the state to assess the taxes on lands for years in which they were omitted from the assessment. The statute, (section 113, c. 11, Gen. St. 1878,) as amended by section 1, c. 5, Laws 1881, provides that "if any real or personal property shall be omitted in the assessments of any year or years, and the property shall thereby escape taxation, when such omission shall be discovered the county auditor shall enter such property on the assessment and tax books for the year or years omitted, and shall assess the same, and extend all arrearages of taxes properly accruing against said property, with seven per cent. interest thereon from the time said taxes would have become delinquent, and the same shall be extended against such property on the tax-list for the current year. "From the certificate of the findings of fact by the court below it appears that the amount of taxes inserted in the list was made by assessing taxes, interest, and penalties for each year in which the assessment had been omitted. The defendant complains only of the penalties thus added to the taxes each year. Without inquiring whether the legislature could impose a penalty for non-payment of a tax while one has no opportunity to pay it, it is enough to say it has not assumed to do so. There is no warrant in the statute we have quoted for including penalties in the amount assessed. The answer may be insufficient to entitle the defendant, on the trial below, to prove that such penalties were included, if the evidence had been objected to; but the fact is found, and we must presume it was so found on evidence admitted without objection. The court below will ascertain how much of the penalties was so included in the assessment, and exclude the amount of them from the amount of the judgment. FREEMAN v. FREEMAN. (Supreme Court of Minnesota. November 12, 1888.) 1. DIVORCE-ADULTERY-PLEADING-DEFINITENESS. The charge of adultery, in an action for divorce on that ground, must generally state, definitely, time, place, and person, or, when called on to make the pleading more definite and certain, the party must show an excuse for not doing so. 2. SAME. Instance of what would be an excuse. (Syllabus by the Court.) Appeal from district court, Freeborn county; FARMER, Judge. Action for divorce by Mark A. Freeman against Mary J. Freeman. From an order denying the motion to make the complaint more definite and certain, defendant appeals. Lovely & Morgan, for appellant. D. F. Morgan and John Whytock, for respondent. GILFILLAN, C. J. In the conduct of actions there is no right more clear than that of a party to have the allegations in his adversary's pleading made with such reasonable and practicable definiteness and certainty as to enable him to meet them with counter allegations, and to prepare, so far as the truth of the case will permit, to meet them with proofs. In no class of cases has the sufficiency of pleadings, in this particular, come in question more frequently than in actions for divorce on the ground of adultery. As the result of the decisions, it may be stated that in general, in alleging the adultery, the circumstances of time, place, and person must be stated with definiteness. That degree of certainty is required, because, generally, where there is enough to justify alleging the fact of adultery, the party is able to state those circumstances. There may, however, be such a condition of things as will justify the party in alleging, and the jury in finding, the fact of adultery, although the party may be unable to state some one of the particulars. In such a case the party, when called on to make his allegations more definite and certain, must excuse himself by showing such a condition of things. Thus, the fourth paragraph of the complaint charges that on divers days and times, within a period of over three years, the defendant committed adultery with one H. E. at the towns of Nunda, Freeman, and Shell Rock, in the said county of Freeborn. This gives but one particular, to-wit, the person, leaving those of time and place practically as much at large as though no attempt were made to specify them. Prima facie, the charge is too indefinite and uncertain. But when called on to correct the pleading in this particular, the plaintiff might perhaps be able to show circumstances that would justify the charge of adultery with the person named, though they might not enable one to state time and place with any more definiteness than in the complaint. As, for instance, that the persons lived or constantly associated together during the period, and at the several places mentioned, under such circumstances that the inference of adulterous connection would naturally follow, though not such as to point to any specific act. The fifth paragraph of the complaint is still worse. It contains no element of certainty. As the plaintiff made no showing of excuse for the indefiniteness in these two paragraphs, the court ought to have granted defendant's motion to make them more definite and certain. The order appealed from is reversed, and the court below will enter an order directing the said two paragraphs to be made more detinite and certain. COLLINS, J., being absent, took no part in the decision. |