Arnold v. Visenaux

Dibell, C.

Appeal from an order entered January 25, 1913, vacating as void for want of jurisdiction a judgment entered December 9, 1909, in favor of the plaintiff and against Joseph Visenaux and others; and from an order of June 7, 1913, refusing to vacate the first mentioned order.

On December 21, 1891, one Joseph Vezina received from the United States, under the name of Joseph Visenaux, a patent to certain lands in Lake county involved in this action. In September, 1909, the plaintiff commenced an action against Visenaux and others to determine adverse claims. There was no personal service. It was alleged in the affidavit for publication that Visenaux was not a resident of the state of Minnesota and that he could not be found therein. The sheriff of Lake county, on September 13, 1909, made a return to the effect that he could not be found within Lake county. At that time he was transiently in the county. Ilis home was in Carlton county, where he lived on a small farm. Tor many years prior to this time he was a resident of Minnesota. It is assumed that the service by publication was in due form.

On August 1, 1912, Vezina found that judgment had been entered against him. Proceedings to vacate it for want of jurisdiction were at once instituted. There is some evidence that the two names, as commonly pronounced in English, sound the same. There is some evidence, very slight, that the name was spelled both ways, and also Vizina. We are putting it' favorably enough to the plaintiff when we hold that the showing was such as to justify a finding that an officer with a summons directed to Joseph Visenaux with reasonable diligence would have found Joseph Vezina, the real owner of the property, and that no jurisdiction was acquired by publication.

Orders affirmed.