HARTLEY V. BOYNTON.
873
determme wnether the plaintiff could have brought this suit before be had reduced his claim at large to judgment. Each case, however, is presented to the chancellor on its own facts and circumstances; and often a demand is held stale where not pursued within a period of time short of that fixed by statute, or held not barred, although at law the statute of limitations would prevail. Although courts of equity, as a general rule, follow the statute of limitations, they do not so do when manifest wrong and injustice would be wrought. In the case now before the court it is probable that if the plaintiff had entered upon the doubtful ground as to such cases in equity by filing his bill in 1873, being a creditor at large, and the court had held that it had jurisdiction, it would have found an issue for a jury to first determine the validity of the demand, whereby like delay would have ensued. Still, such a proceeding would then have brought home to the defendant notice that such a claim existed. The ordinary and safer course has been pursued by first reducing the demand to judgment and ex.hausting the remedies at law, and then filing a bill in equity promptly thereafter. In so doing no laches to bar this action can be imputed to the plaintiff; nor can it be held that he is within t1le bar of the statute of limitations. Presumably the original claim on which judgment was rendered could not have existed so early as stated, otherwise the action at law would have been barred by the statute. There are many averments and issues as to R.ncillary matters touching this question, which, if a different conclusion had been reached on the general facts herein stated, might have requ'red full consideration; such as, the circumstances under which the conveyance was made and its purpose with reference to creditors, the consideration therefor, the relation of the two corporations to each other or their practical identity, etc. It must suffice that independent of 6uch inquiries the bar set up in the answer canr:ot be upheld, and the exceptions must be sustained. MCCRARY,
J., concurs.
HARTLEY
v.
BOYNTON
and others. July
(Circuit Court, N. D.lou:a, W. D. 1. SEnncE
Term, 1883.) OF (lR DECREE.
The entry of a jll(lgment or decree by a COll:t, of nece"ity presuppose, the fnct that the court has found that due servictJ hus been huJ or an uPIJe"I...llle(J hus been enlered. IX DECHEE.
2.
This pre;umption, however, not prevent a party from showing, In a proper proceeding, that in fact he had not been properly served, und therefore
i:H4
FEDERAL REPORTER.
is no{bound by a given judgment or decree; and this right is not barred by a recital in the decree that the court has examined the service and finds it to be according to law.
3. SM.fE-SERVICE BY PUBLICATION. Service of notice by publication IS a purely statutory right, and is 'of such a nature that all of the provisions of the statute must be strictly complied with, and courts will not indulge in presumptions to supply apparent defects or failures to meet the requiremeuts of the statute. 4. SAME - IOWA CODE, § 2618, SUBD. 6 - AFFImIATIvE SnOWIKG OF N ON-RESIDENCE.
To justify the publication or the notice undcr subdivision 6 of scction 2618 of the Iowa Code of 1873, it must appear that the action was of thc character described in such subdivision, and that the defendants were non-residents of Iowa and an affidavit must be 1iIed showing that personal service could not be on defendants within the state of Iowa; and where it is not shown by the record in a cause in the circuit court of the county from which the case has been removed to the circuit court of the United States, 1101' by the evidence aliunde, nor by the evidence in the case on trial in the United States court, that the defendant was a non-resident of Iowa when service was attempted to be made on him by publication, the decree entered in the case by the state court will be held void for want of jurisdiction.
6. S.UIE-TAX TO "UNKNOWN OWNERS"-IoWA § 894. As, under the facts in evidence in this case, it does not appear that on the first of October, 1877, the lands in controversy had been taxed for that for the reason tbat the several steps necessary to be completed to perfect the taxation for that year are not shown to have l,een completed, and the rer,ords of the county for the previous year show that such lands were taxed in the name of complainant, he was entitled to be notified, as required by section 894 of the Iowa Code, that the right of redemption would expire and a deed be deman<lcd in 90 days after complettJd, service of the notlce, and a notice by publication to" the unknown owners" of such lands was not sutlicient, and the tax deeds executed by the county treasurer after such notice are null and void. G. S.UlE-CUHATIVE ACT OF .:\IAHcn 18, 1874-IoWA CODE, 3049-REVISION, § 3275.
The Iowa statnte of March 18, 1874, was intended to legalize the levy of the special taxes therein specified, the right to levy which had be ell claimed under section 3275 of the Hev,sion, and the amendment thereto: and the adoption of section 3049 of the Code of 1873 must be deemed to be an amendment to section 3275 of the Hevisioll, within the meaning of the statnte, and judgment taxes levied prior to the date of the curative act arc legalized thereby.
Bill in Equity. The complainant, Isaac S. Hartley, is the owner of the record title of certain lands in O'Brien county, Iowa, which were sold at tax sale in IS 74 for certain taxes as assessed thereon in 1873. Tax deeds to H. Greve were executed on the third day of J an nary, 1878, by the treasnrer of O'Brien connty. At the September term, 1879, of the circuit court of O'Brien county, H. Greye brought an action to quiet his title, gaye notice by publication, and procured a decree in his favor against complainant herein. The bill in the present cause is against H. Greye and his grantees, and is brought for the purpose of setting aside the decree rendered in the circuit court of O'Brien county, on the ground that the court had not jurisdiction of the cause when the decree was entered, and also to set aside the tax deeds, and to be allowed to redeem from all taxes that are legally due upon the lands in question.
HARTLEY V. BOYNTON._
875
Coolbaugh J: Call and C. H. Clark, for complainants. J. H. Sican, for defendants. SHIRAS, J. 1. The decree rendered in O'Brien circuit court ts con· elusive upon the rights of complainant herein, provided the court had jur:sdiction of the cause when the decree was rendered. There was no personal service of the original notice in that cause, and defendant did not appear therein. Service was made hy publication only, and the question is whether this substituted service was made as provided by law, for, unless it was so made, the court had no jurisdiction, and its decree is of no force. The present action was originally brought in the circuit conrt of O'Brien county, Iowa, and one object of the proceeding W[1,S to h[1,ve the question of the jurisdiction of the circuit court of O'Brien county, in the cause of II. Greve v. Isaac S. Hartley et al., determined. 'rhe validity of that decree is therefore directly attacked, and is not brought up collaterally. The cause having been removed to this court under the act of congress providing for the removal of causes from the state to the fedeml tribunal, the questions at issue have to be determined by this court. In the decree rendered by the circuit court of O'Brien county it is recited that, "it appearing to the court upon an inspection of the records that the original notice herein was duly served on the above-named defendants, in time and manner provided by law," etc. It is claimed, on the part of defendants in the present cause, that this recital shows that the circuit court of O'Brien county heard and determined the question of the proper service of the original notice in that cause, and that the finding as shown by this recital is conclusive upon this court. In all cases before a judgment or decree is rendered, whether it is so recited in the record entry or not, it is presumed that the court, before rendering a judgment or decree, ascertains and determines the fact that proper service has been -had, or that there is is an appearance for the party; for unless it appeared that the defendant was in court, no judgment or decree could be properly rendered. 'The entry of a judgment or decree by a court of necessity presupposes the fact that the court has found that due service has. been had, or an appearance has been entered. This presumption, however, does not prevent a party from showing, in a proper proceeding, that in fact he had not been properly served, and therefore is not bound by a given judgment or decree. This rig/It to qnestion the jurisdiction of the court, at the time the decree or judgment against him was rendered, is not barred by a recital in the decree that the court has examined the sen"ice and finds it to be according to law. If the defendant was not in fact before the court by beingproperly served, when the court makes examination in regard to the service, the finding of the court upon that questioll cannot bind the defendant. The question, therefore, of jurisdiction is open to investigation, notwithstanding the recitals in the decree. It is admitted that the only service made in the case in O'Brien
876
FEDERAL REPORTEr..
county was by publication. Service of notice by publication, being a substitute for actual personal service, is a purely right, and is of such a nature that all the proviSi6ns of the statute must be strictly complied with, and courts will not indulge in to supply apparent defects or failures to meet the requirements of the statute. The Code of Iowa, § 2618, provides for this class of cases, and the circumstances under which notice to defendants may be given by publication. It provides that the "service may be made by publication when an affidavit is filed that personal service cannot be made on the defendant within this state, in either of the following cases: * * * (6) In actions which relate to, or the subject of which is, real or personal property in this state, when any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists whoily or partly in excluding him from any interest therein, and such defendant is a non-r<.;sident of this state, or a foreign corporation." The action brought by H. Greve against Isaac S. Hartley et al., in the circuit court of O'Brien county, comes within the provision of this sixth subdivision of section 2U18. To justify the publication of the notice, it must appear that the action was of the character described in this subdivision, and that the defendants were non-residents of Iowa, and an affidavit must be filed showing that personal senice could not be made on defendants within the state of Iowa. An examination of the records of the case in question shows that the action was of the character of those inclu(led within this subdivision, and the record alao shows that the affidavit to the effect that person rl1 service could not be made on def,mclants within the state was properly filed. There is nothing shown upon the records of the case in O'Brien county, from which it can be inferred that the defendants were at that time non-re.,idents of Iowa,-that is to say, the records of the case fail to disclose the fact of the place of residence of defendants,-and it is not shown that any evidence thereof was submitted to that court, showing that defentbnts were ':lon-residents of Iowa at that time. Now, unless the defendant" were non-residents, service by publication was not permissible under the statute in that action. In the record and evidence suhmittecl to 'this court I am unable to find Imy evidence showing that in IS7D Isaac S. Hartley was a nonresident of Iowa. I do not determine nor rule npon the question whethe: the record in the original case must show that the defendants vere non-residents in order to sustain service by pnblication only. ·What I hold is that as it is not shown Ly the rl:t:lml in that cause, nor by evidence aliWide, nor by the evidence iu this cause now on trial, tha: Isaac S. Hartley was a non-resident of in IS Ttl, when service was attempted to be made by publication, that this court will not presnme that he was 3 non-resident, and that, as it does not appear that he was a non-resident at that time, the sen"ice by publication cannot be upheld,
877
because the statute only permits such service in case that defendant was a non-resident, which fact must be made to appear in some mode if such service is to be sustained. I therefore, without passing upon the other objections urged against the sufficiency of the service in the case of Greve v. Hartley et al., hold, for the reason stated, that the service by publication is not sufficient to support the decree of the circuit court of O'Brien county, because it nowhere appears or is shown that Isaac S. Hartley was in 1879 a non-resident of the state of Iowa. It not appearing, therefore, that the service of notice by publication was justified under the provisions of the statute, it follows that no service whatever had been had upon the defendants in that cause, and consequently that the circuit court of O'Brien county was without jurisdiction of the cause when the decree by default was entered in that court. Lacking jurisdiction, of course the decree is not. binding, and must be held to be null and void. 2. The next question presented is whether the tax deeds executed to H. Greve, and the title derived thereunder, are valid and binding. It is urged, on behalf of complainant, that these deeds are not valid, for the reason, among others, that no notice to redeem was served upon him as required by section 804 of the Code of Iowa. The only notice to redeem that was given, was by publishing a notice addressed to "unknown owners," the notice containing a large number of pieces of realty which it "was stated were sold to H. Greve. The agreed statement of facts filed in this cause shows that complainant, since 1871, has been the owner of the lands in controversy, unless deprived thereof by the tax deeds under consideration; that the lands in 1875 and 1876, and the year previous thereto, were taxed in complainant's name, and that in 1877 they were taxed as unknown, or at least that no name was carried out upon the treasurer's books opposite the description of the lands. The statute requires the notice to be served upon the persons in whose name the land is taxed; the same to be served personally if the land-owner is a resident of the county, and by publication if a non-resident of the county. The notice was published October 1, 1877, and the question for decision is whether the notice should have been addressed to Isaac S. Hartley, and served either in person or by publication. In other words, the question is whether these lands, on October 1, 1877, were taxed in the name of Hartley, or as unknown. This section 894 of the Code of Iowa, requiring notice to redeem to be given to the owners of realty before applying for a tax deed, is one that must commend itself to all, and its provisions and purpose should not be nalTO'Iyed by any line of construction that may teud to defeat its beneficent purpose. Parties holding tax certificates should be held to a full performance of all its requirements before they become entitled to demand a tax deed under its prm-isions. The object of the section in requiring notice to be sen-ed upon the person in possession of the land, and also upon the i.lerson in whose name the same is taxed, clearly is to provide that
878
the owner of the land may be notified of the fact that a tax title if' maturing in order that he may have 90 days in which to protect his rights and redeem the land. It is therefore made the duty of the holder of a tax sale certificate to give notice to the person in possession, and to the person in whose name the land is taxed, that the right of redemption will expire, and a deed be demanded in 90 days after complete service of the notice. This provision of the statute must be observed in good faith by the holder of the tax certificate before he becomes entitled to demand a tax deed. In the case now before the court it is shown that the title of the lands in dispute had been in complainant's name upon the records of the county since lS71; and for several years, including 1875 and 1876, the lands were taxed in his name. Now, on the first day of October, 1877, was there any reason why the holder of the tax certificate could not readily ascertain the name of the party to whom notice was to be given? He published notice under the caption of "Unknown Owners," and justifies so doing by claiming that the lands in 1877 were taxed as unknown. The question for decision is whether, on the first of October, 1877, these lands were taxed to any person by name. It will be remembered that the object of the statute in requiring servic'3 upon the person in whose name the land is taxed, is to provide for notice to the probable owner of the land. For the purpose of giving notice nnder this section of the Code a completed taxation in anyone year holds good as a designation of the person to whom noti.ce is to be given until the lands are again taxed at a subsequent time. As I have already said, these lands in 1876 were taxed in the name of Isaac S. Hartley, and thus he was designated as the person upon whom service must be made under the statute, and this designation held good until by a subsequent taxation of the land some other party should be shown to be the person to be notified, or else by being taxed as unknown the necessity of giving notice might be waived. If on the first day of October, 1877, these lands were taxed to unknown owners, then notice to complainant by name would not be required. By the taxation of property is meant the se,eral steps of listing the same, assessing the values, equalizing values by the proper boards of equalization, fixing the rate of levy by the board of supervisors, which is done in September; the of the tax-list by the auditor, under section 839; and the delivery of the completed list by the auditor to the county treasurer on or before the first day of No,ember. It is not claimed or shown that these se,eral proceedings had all been had and completed on the first day of October, 1877, and hence in my judgment it cannot be said that on that day the lands were taxed to "unknown owners." The county auditor has exprpss statutory authority for correcting any clerical or other error in the assessment odax-book; and hence, it should be made to appear to him that lands entered all the list to unknown owners should be entered and taxed to
879
880
complainant is entitled to redeem the lands from the tax made thereof,-said redemption to be made within 90 days from thIS date; and that if redemption be not made, that the holder or holders of tax certificates be entitled to demand and receive tax deeds for saId lands from the treasurer of O'Brien county, as provided by law; complainant being also entitled to a decree for costs.
MOSHER v.
ST. LOUIS, I. M. & S. By. Co. t September 22, 1883.)
(Circuit (lourt, E. D. Missouri.
CARRIER-PURCIIASER OF RULROAD TICKET BOUND TO COMPI,Y WITH ITS CONDITIONS-AUTIIORITY CONDUCTOR
Where A., a railway company, soIl! a ticket to B., good for a trip from C. to D. over A, 's road ami E. 's road, with which A. 's connected, and also go"d for a return trip on condition that B. should, within a specified tiIll<l, ident.Jfy himself to E.'s authorized agent at D., and have his ticket dated and signed in ink and stamped by such agent, and B., in a suit against A. for damages, set forth said facts in his petition, and alll'ged that within ti» specified time he presented himself and said ticket" at the business office and depot" of E. at D., before the time of departure of E. 's train for C. which he desired to take, and offered to identify himself and have said t cket stamped, etc.," and in all manner fully complied with the terms of said contract on IllS part," but that the defendant and E. failed to have an agent present then and there at said office for that purpose at any time between the time the plaintiff SO presented himself and his ticket and the arrival of the train for U.; that B. proceeded on said train, however, and explained the said circumstances to the conductor, who agrt·ed to permit him to ride as far as X., a', intermediate point, hut subsequently, instead of SO doing, ejecled him fro'11 the train,-held, on demurrer, that no sutlicient excuse for B.'s non-compliance with the conditions of his ticket was given; that said conductor had no power to pass upon B.'sexcuses; and that, therefore, the petition did not state a cause of action.
At Law. E. P. Johnson and TV1/!. M. Eccles, for plaintiff. Bennett Pike, for defendant. TREAT, J. 'rIle petition avers that plaintiff had a railroad tiCKet issued by defendant, with proper COUpOlJS, for his transportation from St. Louis to Hot Spring,; within five days, and return at any time within 85 days from date of the ticket, "by identifying himself as the original party to said contract, and purchaser of the ticket containing it, to the satisfaction of, and to the authorized agent of, the Hot Springs Railroad at Hot Springs, Arkansas, within eighty-five days from said date of entering into said contract, and after said contract or ticket bad been officially signed and dated in ink, and duly stamped by sa;d agent at Hot Springs, Arkansas, and to be good five days from the latter date to return to said cily of St. Louis." In accordance with the terms of said contract, plaintiff was transported as a passenger from St. Louis to Hot Springs, and within the lReporled by llenj. F. Rex, Esq., of tbe St. Louis bar.
!lOSHER V. ST. LOUIS, I. M. & S. BY. CO.
881
specified 85 days, desiring to return to St. Louis, "presented himself and said contract or ticket at the business office and depot of said Hot Springs Railroad at said Hot Springs, before the time of departure of its train for St. Louis, and offered to identify himself as the original party to said contract and purchaser of said ticket, to the satisfaction of, and to the authorized agent of, said Hot Springs Railroad at said Hot Springs, Arkansas, for the purpose of having the same officially signed and dated in ink, and duly stamped by said agent, and in all manner fully complied with the terms of said contract on his part; but the defendant and said Hot Springs Railroad failed to have an agent present then and there at said business office and depot of said Hot Springs Railroad, for that purpose, at any time between the time the plaintiff so presented himself and said contract and ticket at said business office and depot at Hot Springs, and the arrival of the train that plaintiff desired to tako going to St. Louis," etc. Plaintiff proceeded on the train, however, and on representing to So conductor the foregoing facts and showing his ticket, the latter 11 greed to take him on the train to Little Rock, and have said ticket there signed, dated, and stamped by the agent of the defendant, and then transport the plaintiff to St. Louis, but instead of so dc.;ng, expelled the plaintiff from the train, refusing to transport him to Little Rock under said contract, by reason of which wrongful acts plaintiff has been damaged to the extent of $10,000. Sucb were the important averments of the petition, and they show that the plaintiff was expelled from the car for failure to present the needed ticket. It is evident that he knew the ticket was irrAgular, and on its face showed his non-compliance with the terms of the contract. The conductor could not substitute himself for the agent named by whom the identity was to be ascertained, etc., nor was it for him to pass upon the sufficiency of the excuse offered. Indeed, the petition itself does not disclose at what time he presented himself with his ticket at the business office and depot of the Hot Springs Railroad for the purpose stated; nor that the time and place were proper and reasonable. It seems that he had not the required ticket, nor did he offer to pay the fare due. There is nothing in the petition to show tbat he had complied with his express contract, or attempted to do so in a fair and reasonable manner, even if a proper effort on his part would avail. It is evident that he cannot recover on the contract, became he had failed to comply with its terms; and he cannot recover for the alleged trespass, because the conductor rightfully expelled him from the cars for failure to present a proper ticket. The principles on which this ruling on the demurrer to the petition are based, will be found fully stated and discussed in 6 Amer. & Eng. Ry. Cas. 322 et seq. and notes. Demurrer sustained. v.17,no.13-56
88:6
FEDERAL
CUNNINGHAM
CHICAGO,
M. & ST. P. R. July 16,1883.)
CO.
(Circuit C<Jurt, D. :Uinne8ota.
1.
PERSONAL IN.JUlly-CONTRIBUTORY NEGLTGE>;"CE.
A., in the employ uf a railroad comp,my ,IS y'mlman, while engaged in hi; occupation as such, attempted to board the SwiLCI1-engine, with whieh he was working', by standing in the middle of the tTack and stepping on the rear footboard of said engine, which was approaching him, tender Iirst, at a rate of from one to three miles:m hour, but, in the attempt, fell. was run over by the engine, and died f!'Om the etIecl of his injnries. The hanel-rail on the rear ena of the en;;ine, which was approaching the deceased, had been torn olr the previous night, and had not lJeen reph" ed, and the rear foot-bo[lrd of tJle engine in question was partly broken at one end. Suit was brought by the administratrix, the mother of the deceased, to recovcr the sum of $5,OUO. The ju:y rctnrncd a verdkt for $l,tlOO in favor of the plai ntit!. Before the jury left the jury-box a motion was made by thc defendant to set asidc the vcrdict. lleld, that thc act of so attempting to board thc cnbine was clearly a casc of gro·s contributory negligence on the part of the deceased, and the verdict should be set aside. SAME-VOLUNTARILY ASSU)UNG A POSITION OF DANGER.
If a man voluntarily and unnecc.,sarily himself into a danl;crolls position, where there other position,; that he may take, in connection with the discharge of his duty, that arc safe, he cannot recover uamages for t11at injury to which he has contl'ilmted by his OWll negligence.
At Law. This is an action brought by Mrs. J\Iary Cunningham to recover the sum of $5,000 damages for the death of Thomas McCarthy, the son of this plaintiff, which was caused by his being run over by a switch-engine, while he was in the employ of this defendant as such yardman. Defendant sets up contributory negligence as a defense. The complaint alleges that the deceased was engaged in the employ of the defendant as yardman, in the city of St. Paul, and that it was necessary for him as such yardman to get on and off cars and engines while the same were in motion; that the engines in use for such yard business are what are called switch-engines, and are usually provided with foot-boards and hand-railings for the use and safety of the employes working around them; that on the first day of December, 1880, while the deceased was so employed, the said engine was so unskillfully, negligently, and improperly constructed and operated by defendant that the said John McCarthy was thrown from and run over by said engine, and received such injuries as resulted in his death on the tentll of Decemoer, 1880; tllat at the time of the accident the rear hand-railing on said engine was wholly broken off, and the rear foot-board on said engine was partly broken; of which defendant had due notice and which was unknown to this deceased. Answering this, the defendant admits the employment of the deceased, and that it was necessary for him as such yardman to ride upon said engine and cars; but denies that it was necessary for him, in the usual course of his employment, to get on or off said cars and engine while the same were in and denies that said