The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-06-07
DECISIONS OF TIE
SUPREME COURT

In the supreme court, state Of North
Dakota. April 1911, term.
Robert T. Roberts. plaintiff and ap-
peilant, VS.. Enderlin Investment Co,
q corporation, r. T.. Beiseker, eft al
defendants and respondents.
]. Filing the return of the sheriff
specified in subdivision of Section
$40 Of the code. thirteen days after
the filing OF the affidavit therein speci-
ned, and after the summons had been
twice published, Is not sufficient
compliance with the provisions Of said
subdivision to confer jurisdiction by
publication Of the summons when no
other service of the sumomns was
made and no appearance was made by
defendant in the action.
q The provisions of Section 6S40 Of
the code must be strictly complied
with to render effective an attempted
service of summons by publication.
.. In cases under subdivision 8 of
section $40 Of the code, the provisions
thereof require that the return of
the sheriff, therein spectfied, be filed
IN the action prior to the first puhli-
cation of summons, in order to au-
thorlze service of the summons by
publication.
T. In case arising under subdi-
vision of section 6S40 of the code.
the filing of the return of the sheriff,
therein specified. prior to the first
publication of the summons, is a jur-
isdictional prerequisite. and a failure
to SO file such return is fatal to the
validity of the service of the summons
by publication.
(Syllabus by the court)
Appeal from district court, Wells
county; Burke j.
Action to- determine adverse claims
to real property From judgment in
favor of defendant, T. l.. Beiseker,
paintiff appeals. Reversed.
Youngblood 4 Whipple attorneys
for appellant; Purcell & Divet of coun-
sci. z. Fl. Wright, r. A. Palmeter, and
Edward P. Kelly. attorneys for re-
spondent.
Opinion Of the court by Nuchols,
special Judge.
Hon. A. g. Burr Judge of the Ninth
judicial district, and s. L. Nuchols.
judge of the Twelfth Judicial district,
the latter In place of Justice Burke,
disqualified, sat in the hearing OF the
above entitled action by request.
Joseph E. Bazal, PLAINTIFF and appel
liant, VS.. The ST. Stanilaus church. |
corporation. defendant and respondent. |
l. The mere inconvenience TO a |
party defendant and the mere fact that |
ne is busy with his farm work dur /
ing harvest, and neglects to |
attend to his defense in time to prevent |
the entry of a default judgment, does |
not furnish such excuse as is contem- |
plated by the provisions Of the stat
ute admitting the opening of judg-
ments entered through the mistake, i'm
advertance, surprise or excusable ne
glect of the defendant
2. In this case the defendant was 4
religious corporation Service OF sum
mons was made upon its secretary
who neglected, by reason OF the pres
sure OF his personal affairs, to provide
Tor a defense. The chairman OF the
board Of trust~es called a special meet
Ing about eight days after the service
Of the summons and complaint, for
the consideration Of the controversy.
Such meeting was held. 1t is not
shown that any preparation was made
for interposing a defense Held. that
to vacate default decree on such
showing constitutes, In a legal sense.
an abuse of discretion.
(Syilabus by the court.)
Appeal from an order vacating judg-
ment' OF the district court of Walsh
county; Kneeshaw, judge
Feetham g. Elton. attorneys for re-
spondent I'll. c. DePuy and Jen M.
Meyers, for appellant.
Reversed. a.,,..
Opinion by Spalding, j.