Gray v. Gates , 37 Wis. 614 ( 1875 )

LyoN, J.

This action was brought in tbe circuit court for Pierce county, under tbe provisions of cb. 22, Laws of 1859, to bar tbe title and interest of tbe former owners in certain lands in that county, conveyed to the plaintiff by a tax deed. Judgment for tbe plaintiff for the relief demanded was rendered therein at tbe May term, 1869, of such court. At tbe May term, 1874, the court, on motion of one Stephen K. Gates, who was tbe former owner of one of tbe parcels of land conveyed by such tax deed, made an order opening the judgment as to Gates, and giving him leave to file an answer to tbe complaint. This appeal is from such order.

Gates is not named in tbe summons or complaint as a party to tbe action. If a party thereto, be is such under tbe general designation of “ unknown owners.’’ If tbe proceedings against the “ unknown owners ” of the lands affected by tbe action were not so conducted as to make Gates a party in respect to bis land, and to bind him by tbe judgment, be has no standing in tbe action, and tbe court erred in opening the judgment and permitting him to come in and defend. In that case be has bis remedy by action to avoid tbe invalid tax deed (if it be invalid), and the judgment in this action will not affect his right to be relieved against it. Bean v. Fisher, 14 Wis., 57.

Hence, it is more favorable to Gates to regard him as a party to the action; and for the purposes of this appeal, be will be so considered. For like purposes it will be assumed that if tbe court bad power to open tbe judgment, it sufficiently appears from tbe affidavits on which tbe motion was founded, that Gates ought to be let in to defend tbe action. This only leaves to be determined the single question, Had the circuit court power to open the judgment five years after it was rendered?

If Gates is a party to tbe action, be is so by virtue of sec. 46, cb. 22, Laws of 185'9, which is as follows: “ If the plaintiff in an action commenced under the provisions of this act cannot ascertain who are the proper persons to make defendants, as to any tract or parcel of land described in his complaint, he may allege the fact in his complaint, and they may ■be proceeded against as absent defendants, and shall be described in the proceeding as ‘ unknown owners.’ ” (Tay. Stats., 451, § 210.) For the practice in such cases we must necessarily look into the general statute, which prescribes the mode of procedure against absent defendants. It is provided in sec. 10, ch. 124, R. S., that a defendant upon whom service has only been made by publication of the summons, may, “ upon good cause shown, be allowed to defend after judgment, at any time within one year after notice thereof, and within three years after its rendition.” (Tay. Stats., 1431, § 12.) Nelson v. Roun-tree, 23 Wis., 367, is an authority that this statute is applicable to this cause.

The proceedings in the action seem to have been regular; at least the record fails to disclose any defect of jurisdiction in the circuit court. The appearance by Gates to move that the judgment be opened and for leave to answer, was a general appearance to the merits, which waived all defects in the service of process and in the proceedings preliminary thereto, and gave the court jurisdiction of his person. Grantier v. Rosecrance, 27 Wis., 488, and cases cited. Such being the case, the court had no power over the judgment after the adjournment of the term at which it was rendered, save that given by statute. The largest power thus given is that conferred by the statute last above quoted. The periods of one year and three years therein mentioned are necessarily limitations of the power. Thus far may the court go, but no farther. The relief must be obtained, if at all, within one year after notice of the judgment, but it cannot be granted after three years from the rendition thereof. Whether the defendant have notice of the judgment or not, the power of the court to disturb it is absolutely gone at the expiration of the three years.

It follows that the circuit court had no power to open the judgment and permit Oates to defend the action.

By the Court. — Order reversed.