The Fargo forum and daily republican., 1909-05-14
TERRITORIAL
Law INVOLVED
INTERESTING DECISION or THE
SUPREME COURT REGARDING
TITLE TO PROPERTY IN WHICH
LAWS or DAKOTA TERRITORY
ARE BROUGHT UP.

The supreme court Of North Da-
kota handed down an interesting de-
cision yesterday in which o. phase of
the old Dakota territorial law regard
ing title to land is involved.
There are many points OF law in
volved and although the principal
point In question Is not a common one
there may be number of other cases
throughout the state in which this de-
cision will be used as a precedent.
Following is the syllabus of the
court in the case:
Hugh Campbell, jr., appellant, VS..
J. Warren Coulston, defendant, and
Joseph w. Bull, movant and respon-
dent,
/. Following the Merchants Nation
al Bank of Bismarck VS.. Braithwaite,
z N. D.. 35S. 1t is held that on the
admission of the state of North Da-
kota into the federal union, the state
district courts became the successors
to the territorial ditrict courts in ac-
tions no longer pending, and that the
judgment of he territorial district
courts passed under the jurisdiction OF
the state district courts.
2. The district court of the state
for Burleigh county has jurisdiction
over the records and judgments Of the
district court OF the territory of Da-
kota for Burleigh county, and may en-
tertain and act upon a motion to va
cate a judgment of such territorial
court, entered in 1885, for want of
jurisdiction in that court to render
the same.
8. Section 1O4 of the revised codes
of the territory of Dakota, 1877 pro-
vided that, when the person on whom
service OF summons was to be made,
could not, after due diligence, be found
within the territory and that fact ap-
peared By affidavit to the satisfaction
of the court, or Judge thereof. such
court, or judge, might grant an order
that the service be made by the pub
lication of the summons in certain
cases, and that in case of publication,
the court, or judge, should also direct
copy Of the summons and complaint
to be forthwith deposited in the post
Office, directed to the person to be
served, at his place of residence, and
1ANNA WdS ~
ordered, personal service of copies of
the summons and complaint, out of
the territory was equivalent to pub
lication and deposit in the postofflce.
Held: That such affidavit was re-
quired to state facts showing the ex-
ercise of due diligence to find the de-
fendant within the territory of Dakoa,
and that in the absence OF statements
of facts showing due diligence, moth
ing was presented for the mind of the
court to act upon judicially, and that
the court did not acquire Jurisdiction
to grant an order directing construc-
tive service of the summons.
4-The affidavit in this case on
which the order for constructive SER
vice rested, stated that the defendant
could not, after { le diligence, be
found within the territory; that the
summons had been returned by the
sheriff of the county with his endorses
ment thereon that the defendant
could not be found, and further, that
affiant was informed and believed
that said defendant resided at Phil
adelphia in the state Il Pennsylvania
The summons and return were an.
nexed to the affidavit as part there
of, and both the summons and return
bore date Feb. Q, 1886, and the ordel
was granted on the same day.
Held; That the court acquired nS
jurisdiction to enter such order.
5-The fact that copies of the sum.
mons and complaint were addressed
and mailed to the defendant as re.
quired by such order, and the furthel
fact that on the 9th day of April
1885, service Of copies OF the origina
summons and complaint we're mad
on the defendants in the city Of Phila
delphia, in the state of Pennsylvania
did not aid the jurisdiction or cur
any defect in the affidavit.
6-The judgment entered withou
personal service on the defendant II
the territory of Dakota, or appearance
| by him in the action, on the affidavit
and facts above referred to, was rem
dered without jurisdiction of tn
court, and is void and of no effect.
IA void Judgment is no judgmen
and protects no party. Courts onl
entertain a motion to set a vol
judgment aside to protect third par
ties, and the public, and to maintai
| the integrity of their own records
and to noe leave in the power {
designing persons TO make use Q
| them to the injury OF others, and
judgment shown by the record to
void may be- vacated Ct any time.
s-A motion to vacate a vol
Judgment Ii not addressed to the dis
cretion of the court, but rests upo
the undeniable right Of the party i
interest to be relieved from the effec
of record against him which doe
not speak the truth.
9-Ordinarily a stranger to tn
record can not be heard to object
the validity OF a judgment, but to thi
rule there are several exceptions, an
/ among them IL one in favor of tn
of the successor in interest of the sub
ject matter of the action or judgmen
Hence the movant and grantee Of tn
original defendant, is qualified !
make application for sne vacation c
a Judgment Of foreclosure entere
A without jurisdiction of the cour
| which entered 1t, against the prem
ises to which he holds such grant.
1O-The motion to vacare the juds
ment in this case was heard upc
the records and files OF the court, Ger
| tain papers, the positive affidavit {
the movant, and upon paper de
nominated a return to respondent
order to show cause why such vol
Judgment should not be vacated. Al
4 pelIant submitted no evidence oths