Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-05-14
COURT MUST De SHOWN.
Record Abstracts and Briefs Must Be
Filed In Court.

Record Abstracts and 6riefs Must Be
Filed In Court.
The matter of the request of the
attorneys interested in the Fargo
bond litigation for an advancement
on the calendar, was brought to the
attention of the supreme court yes
terday by Edward H. Wright, repre-
senting the plaintiffs in the action.
Both the plaintiffs and counsel for
the city have united in a request that
the case be taken up at once and de-
termined.
1t is understood that the court in.
formed the counsel that when the
record and abstract and brief were
filed in the supreme court, then they
would consider a motion to advance
the case.
Until the case is ready for argu-
ment no action will be taken by the
court on its advancement.
Hugh Campbell, jr., appellant, VS..
J. Warren Coulston, defendant, and
Joseph w. Bull, movant and re-
spondent.
/. Following The Merchants Ma
tional Bank of Bismarck v. Braith-
waite, N. D. 1858; it is held that on
the admission of the state of North
Dakota into the Federal Union, the
state district courts became the sue
cessors to the territorial district
courts in actions no longer pending,
and that the judgments of the terri
torial 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
Dakota for Burleigh county, and
may entertain and act upon a motion
to vacate a judgment of such terri
torial court, entered in 1885, for want
of jurisdiction in that court to render
the same.
3. Section 104 of the Revised
Codes of the Territory of Dakota,
1877, provided that, when the person
on whom service of summons was to
be made, could not, after due dill
gence, be found within the territory,
and that fact appeared 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 publication 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 further,
that when publication was so order
ed, personal service of copies of the
summons and complaint, out of the
territory was equivalent to publica-
ton and deposit in the post Office.
Held: That such affidavit was re-
quired to state facts showing the
exercise of due diligence to find the
defendant within the territory Of
Dakota, and that in the absence OF
facts showing due diligence, nothing
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 defend
ant could not, after due diligence, be
found within the territory; that the
summons had been returned by the
sheriff of the county with his en-
dorsement thereon that the defend
ant could not be found, and further,
that aff1ant was informed and be-
lieved that said defendant resided at
Philadelphia in the state of Pennsyl-
yania. The summons and return
were annexed to the affidavit as a
part thereof, and both the summons
and return bore date Of February 3,
1885, and the order was granted on
the same day.
Held: That the court acquired no
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-
ouired by such order, and the further
fact that on the 9th day of April,
1885, service of copies of the original
summons and complaint were made
on the defendant in the city OF Phil
idelphia, in the state of Pennsylvania
did not aid the jurisdiction or cure
any defect in the affidavit.
6. The judgment entered without
nersonal service on the defendant in
the Territory of Dakota, or appear
ance by him in the action. on the
affidavit and facts above referred to
was rendered without jurisdiction OF
the court, and is void and of no ef-
feet.
7. A void judgment is no judy
ment and protects no party. Courts
only entertain a motion to set void
jud gment aside to protect third
parties, and the public. and to main
tain the integrity of their own rec
ords, and to not leave it in the power
of designing persons to make use OF
them to the injury of others, and
Judgment shown by the record to be
void may be vacated at any time.
8.-A motion to vacate void ]uog-