author: JOHNSON, Judge.

text:
    Mabelle F. CHARLSON and Harriet C. Charlson, Plaintiffs and Appellants, v. The CHARLSON ESTATE, a domestic corporation; C. C. Charlson, N. J. Charlson and Ella C. Charlson, individually and as surviving directors of The Charlson Estate, a dissolved domestic corporation; the following named heirs at law of T. E. Charlson, deceased; Louise Charlson, Marie E. Wilkinson; Edith C. Lenz, Kenneth Charlson, Wallace F. Charlson, Eleanor C. Mengel, and Evelyn C. Perkins; the unknown heirs, creditors, devisees or legatees of T. E. Charlson, deceased; and all other persons unknown claiming any estate in, or lien or encumbrance upon, the real property described in this Complaint, Defendants and Respondents.
    No. 7548.
    Supreme Court of North Dakota.
    March 5, 1956.

      Burk, Mclntee & O’Connell, Williston, for appellants, Ward B. Lewis, Minneapolis, Minn., of counsel.
    Bjella, Jestrab & Neff, Williston, for respondents.
   JOHNSON, Judge.

This is an action to quiet title to the West Half of the West Half (Wy2Wy2) of Section 35, Township 155 North of Range 96 West of the Fifth Principal Meridian, Williams County, North Dakota. The defendants in the action are the surviving directors of the Charlson Estate, a dissolved corporation, and the heirs of a former director now deceased. The purpose of the action is to set aside and declare null and void perpetual royalty assignments covering the property involved in the action of 2¼% to each of the following persons, to wit: T. E. Charlson, N. J. Charlson, Ella C. Charl-son, and C. C. Charlson. The action is in statutory form.

The defendants answered denying the allegations of the plaintiffs’ complaint and asserting that they have certain estates and interest in or liens or encumbrances upon the real property involved in the action adverse to the plaintiffs, and by way of a defense and counterclaim allege that on December 7, 1938, the Charlson Estate, a corporation, made, executed and delivered to C. C. Charlson, Ella C. Charlson, N. J. Charlson, and T. E. Charlson by a good and sufficient instrument in writing, an assignment of 2perpetual non-participating royalty in and to all of the oil, gas and other hydrocarbons produced and saved from the land involved in the action, free of cost to the royalty owner, and set forth the recording thereof. It also sets forth that T. E. Charlson is deceased, and that the defendants, Louise Charlson, Marie E. Wilkinson, Edith C. Lenz, Kenneth Charlson, Wallace F. Charlson, Eleanor C. Mengel, and Evelyn C. Perkins, are the heirs at law, devisees, legatees, and successors to the interest of T. E. Charlson, deceased, and the owners and holders of the 2¼% royalty issued to him by the Charlson Estate, a corporation.

The defendants also allege that the action did not accrue within six years, Section 28-0116, NDRC 1943, or within ten years before the commencement thereof, Sections 28-0115 and 28-0122, NDRC 1943.

The plaintiffs by way of reply set up that an oil and gas lease was executed and delivered to the California Company dated September 29, 1937, covering the real property involved in this action as well as other land; that the Charlson Estate, a corporation, in consideration of $3,400 adopted a resolution dated April 15, 1938. The facts, however, show that the resolution was actually adopted April 15, 1939. They also assert that the perpetual oil and gas royalty-assignments were fraudulent and contrary to the terms of the resolution; that they were made with the intent to cheat and defraud the plaintiffs; that Mabelle F. Charl-son never received a 3½ % perpetual oil and gas royalty assignment and never knew that the assignments issued by the Charlson Estate, a corporation, on December 7, 1938, were perpetual; that under the terms of the alleged agreement contained in the resolution, the assignments issued were limited to the oil and gas lease of the California Company covering the land at the time of their issuance.

At the end of the presentation of the plaintiffs’ action the defendants moved to dismiss the complaint of the plaintiffs for the reason that it had been conclusively proved that they knew all of the facts and conditions, and that the testimony shows that the action is barred by the statute of limitations as pleaded in the answer, and for the further reason that the plaintiffs had failed to prove fraud. The motion was resisted. Defendants presented no evidence.

After considerable discussion the court dismissed the action. In its discussion the trial court made statements that it could find no evidence of deliberate fraud or misrepresentation on the part of any of the parties. Findings of fact and conclusions of law were drawn up and signed by the court upon the facts as disclosed by the record and the evidence. Judgment was entered thereon. Thereafter the plaintiffs made a motion to amend the findings to correct the description of the land involved in the original findings and to include therein a provision for 3½% perpetual royalty to the plaintiffs, Mabelle F. Charlson and Harriet C. Charlson.

A stipulation was thereafter entered into by the respective attorneys for the parties agreeing to the amendments and the findings were amended accordingly. These findings, as well as the original findings, state that the “said royalty assignments in perpetuity were not made falsely or fraudulently.” The plaintiffs appeal to this court and request and demand a trial de novo.

No argument is presented upon the issue that this action is barred by the statutes of limitations set forth in the answer. The trial court did not pass upon that issue. It must be deemed abandoned.

Two issues are presented in this action:

1. Was the dismissal of the action by the trial court a dismissal without prejudice or a determination of the action on the merits?
2.' Were the perpetual oil and gas royalty assignments conveyed by the Charlson Estate, a corporation, on December 7, 1938, to T. E. Charlson, N. J. Charlson, Ella C. Charlson and C. C. Charlson fraudulently issued to them, and contrary to the terms of the alleged agreement set out in the resolution adopted by the corporation on April IS, 1939?

We will first dispose of the plaintiffs’ and appellants’ contention that the dismissal of the action was without prejudice and that the determination thereof on the merits was erroneous and requires a reversal of the judgment.

It is argued that the dismissal of this action comes within the terms of Section 28-0801, ND&.C 1943 as a dismissal without prejudice.

It is true that the defendants made a motion to dismiss the complaint of the plaintiffs at the conclusion of the testimony offered by them on the ground that they had failed to prove any fraud in the issuance of the perpetual assignments of royalty.

There is no indication that the defendants desired to present any testimony. It appears that the case had been fully tried and the parties so considered. All the parties treated the dismissal as a determination upon the merits. The court made findings of fact and conclusions of law upon the merits including a finding that the perpetual assignments of royalty were not fraudulent. Then the plaintiffs moved to.amend the findings of fact, conclusions of law, and the judgment to correct the description of the land and to the effect that Mabelle F. Charl-son and Harriet C. Charlson are the owners of all of the surface and of a 3½% perpetual royalty in and to all the oil, gas and other hydrocarbons produced and saved from the land. Thereafter the attorneys for the respective parties stipulated that the findings of fact, conclusions of law and the judgment be amended to correct the same and to include the ownership of 3½% perpetual royalty in Mabelle F. Charlson and Harriet Charlson. Amended findings and conclusions of law and order for judgment and judgment were entered accordingly. This amendment' of the findings and judgment amounted to a request for inclusion of affirmative relief to the plaintiffs.

The plaintiffs and appellants appealed to this court and have requested a trial de novo. The settlement of the statement of this case and the certification thereof so provided. These actions of the parties indicate that they felt that the trial court had decided this case upon the merits. Obviously they treated the determination of the action by the trial court as involving the merits. If this was a mere dismissal of the plaintiffs’ action without prejudice, it would not constitute a final determination by the trial court of the action, and of course, it is clear that there would then be no basis for a request and a demand to try the case anew. The case was decided on its merits.

We now come to the question whether or not the perpetual oil and- gas royalty assignments issued on December 7,. 1938, by the Charlson Estate, a corporation, to C. C. Charlson, Ella C. Charlson, T. E. Charlson and N. J. Charlson were fraudulently issued and contrary to the alleged agreement set out in the resolution adopted by the corporation on April 15, 1939. :

The property involved in this action was originally owned by the. Charlson Estate, a corporation. In 1938 the directors of the corporation were ⅜. E. Charlson, N. J. Charlson, C. C. Charlson and Ella C. Charl-son. The property was encumbered by a mortgage. It was deemed desirable to attempt to liquidate this indebtedness by a compromise with the mortgagees or their assigns. Mabelle F. Charlson advanced $3,-400 for that purpose. The liquidation of the mortgage indebtedness was eventually accomplished. The negotiations back and forth concerning this transaction appear in the form of letters and other documents.

The asserted fraud in this case, it is claimed, arises out of an alleged conflict between the terms of the resolution passed by the Charlson Estate, a corporation, April 15, 1939, as construed by the plaintiffs, and the perpetual oil and gas royalty assignments issued prior thereto. We will quote the pertinent portions of the resolution insofar as they apply to the issues here involved :

“Resolved, that this corporation sell and convey the 720 acres described in a deed from the Barstads to S. Charlson and filed for record in the office of the Register of Deeds in and for Williams County and State of North Dakota, on April 13th, 1917, in Book 53 of Deeds, on page 607, to Mabelle F. Charlson, for a consideration of One Dollar ($1.00) and other valuable consideration, as hereinbefore set forth, and the president and secretary of this corpo-, ration, be and they are hereby authorized and directed to execute, and deliver to Mabelle F. Charlson, a deed or deeds to the said last above referred to lands, in the corporate name, with the corporate seal of this corporation, subject to the incumbrances' now of record against said lands; also to an oil and gas lease from this corporation to The California Company of San Francisco, California, and also subject to assignments of twelve and one-half per cent royalty thereunder, and be it further
"Resolved,, that this corporation issue assignments for twelve and one-half per cent royalty under the above referred to oil and gas lease on the 560 acres of lands described in Book 159 of mortgages^ on page 160, in the office of the Register of Deeds of Williams County, North Dakota, to the following persons, to wit: Mabelle F. Charl-son six and one-half per cent, N. J. Charlson one and one-half per cent, Ella C. Charlson one and one-half per cent, and C. C. Charlson one and one-half per cent, and the president and secretary of this corporation be and they are hereby authorized and directed to execute the above assignments and attach the corporate seal thereto, and be it further
“Resolved that this corporation issue assignments for twelve and one-half per cent royalty under the above referred to oil and gas lease, on the West half of the West half of Section thirty-five (35) Township one hundred fifty-five (155) North, Range ninety-six (96) West, to the following persons, to-wit: Mabelle F. Charlson three and one-half per cent, T. E. Charlson two and one-quarter .per cent, N. J. Charl-son two and one-quarter per cent, Ella C. Charlson two and one-quarter per cent, C. C. Charlson two and one-quarter per cent, and the president and secretary of this corporation, be and they are hereby authorized and directed to execute the above assignments, and attach the corporate seal thereto.” (Emphasis supplied.)

On April 12, 1939, the Charlson Estate, a corporation, deeded to Mabelle F. Charl-son, the land involved in this action, “subject to the unpaid taxes and twelve and one half per cent oil and gas royalty, which oil and gas royalty has heretofore been assigned.” It was recorded May 29, 1943. Prior to the adoption of the resolution the corporation had made assignments of perpetual oil and gas royalties to C. C. Charl-son, T. E. Charlson, N. J. Charlson and Ella C. Charlson by separate instruments, dated December 7, 1938, giving and granting to each one of them 2¼.% royalty of all the oil, gas, and other hydrocarbons produced and saved from the land involved in this action, as well as different percentages to the' same parties on other land which was eventually lost by the corporation. In the habendum clause of the assignment of royalty to each of these parties appears the following: “and it does hereby assign said royalty under the lease now covering said lands as well as any lease, or leases, that may be hereafter made covering said premises.” C. C. Charlson testifies that at the same time a 3½% perpetual oil and gas royalty assignment was executed and forwarded to Mabelle F. Charlson. She claims she never received this assignment and was not aware of the fact that the assignments of December 7, 1938, to the parties mentioned were perpetual assignments. At the time the deed was issued to Mabelle F. Charlson the premises involved in this action, together with other land, had been leased to the California Company, a corpo ■ ration, by oil and gas lease dated September 29, 1937, recorded in Williams County for a primary term of 8 years. This lease was surrendered in writing on the 17th day of October 1939, and the surrender document was recorded in the office of the register of deeds on the 30th day of October 1939. '

It is the contention of the plaintiffs that upon the surrender of this lease, Mabelle F. Charlson became the owner of all the land and the minerals. In January 1949 Mabelle F. Charlson leased the land for oil and gas to A. M. Fruh and Thomas W. Leach. This lease was . assigned to the Amerada Petroleum Corporation. Thereafter and on May 16, 1952, and before the commencement of this action Mabelle F. Charlson deeded one half of the minerals in and under the property involved in this action to Harriet C. Charlson.

The plaintiff, Mabelle F. Charlson, was aware that royalty assignments had been made prior to the delivery of her deed dated April 12, 1939. The correspondence indicates that. Whether the certified copy of the resolution of April 15, 1939, accompanied her deed is not entirely clear, although there is testimony that it was forwarded to her at the time of the delivery of her deed. A certified copy of the resolution, however, was in her possession., It apparently was the only copy of the resolution in existence. No record of the resolution was found in the minutes of the Charl-son Estate, a corporation. It had been approved by her husband, N. A. Charlson.

The Charlson Estate was a corporation which had been created to handle the Charl-son Estate properties. It was dissolved in 1941. In the spring of 1938 the principal properties owned by the corporation were a 560 acre tract in Williams County referred to as the “Barstad Farm”. It also owned an adjoining 160 acres heretofore described which is the subject of this action, and sometimes called the “Mile Quarter”. Sometimes both properties are collectively referred to as the “Barstad Farm.” In addition to these properties the corporation owned 320 acres of land in McKenzie County. The “Barstad Farm”, 560 acres, was covered by a first mortgage which had been assigned to one Petters. It was also covered by a second mortgage for $30,000 given to George B. McLaughlin, a Minneapolis attorney, who was representing creditors of the corporation, and serving as their nominee. Early in 1938 the corporate creditors were threatening to foreclose their second mortgage. The defendant, Carl C. Charlson, also known as C. C. Charlson, an officer and director of the corporation, went to Minneapolis to discuss the matter with his sister-in-law, Ma-belle F. Charlson, sometimes referred to as Mrs. Charlson, and her husband, N. A. Charlson, a brother of Carl. He is sometimes referred to in the correspondence as Alvin, his middle name. Carl Charlson negotiated with the creditors who agreed to accept the sum of $3,400 in settlement of their claims. Mrs. Mabelle F. Charlson agreed to advance that sum. She did advance that sum of money. It then appears that negotiations took place with reference to giving Mabelle F. Charlson something of value so that she could eventually recover back her advances on behalf of the corporation. We will refer to pertinent parts of the correspondence to arrive at the nature of the agreement eventually reached by the parties. The negotiations back and forth concerning the transaction appear in the form of letters and other documents, and cover a considerable period of time. It is evident that all the correspondence is not in evidence, but it is possible from the correspondence in evidence to arrive at the nature of the agreement that was ultimately consummated. Apparently no promises were made to Mabelle F. Charlson at the time that she made her loan to the corporation. The negotiations all came after that. It does appear, however, that upon settlement of the creditors’ claims, the California oil and gas lease was delivered to Mabelle F. Charlson, but it was not assigned to her.

It is clear that in the spring of 1938 after the money had been paid by Mrs. Charlson, an agreement was reached to give her a 1% oil and gas royalty assignment in the 720 acres. In a letter dated May 14, 1938, written by Carl Charlson, he said, in part:

“As it now stands the only assignment we can make is to pay for the money you have put out. And in addition to the royalty we have already assigned you, we can issue 1% royalty on the 320 acre McKenzie County land. This land is not yet leased, but that would make no difference. We will draw up a new resolution to cover this land and also forward the assignment to you. The 560 acres under foreclosure to Petters cannot be considered until such time as it is brought back into the corporation. Any attempt on our part to assign any royalty might jeopardize our agreement on the moratorium. But we can have an understanding that we give you 1% providing we get it back into the corporation.
“It is our purpose to give you this royalty in consideration of the $3400, and Alvin’s ⅛ will come to him out of the remaining royalty.
“We hope we have made this clear to you, and we want to make the settlement to you to your entire satisfaction.”

It will be noted that this correspondence makes no reference to limiting the assignment of royalty to any lease. The reference to Alvin’s sharing in the royalty indicates an intent to divide the royalties among the brothers and sisters interested in the Charlson Estate.

The mortgage held by Petters was foreclosed and the land was eventually lost to the corporation. Mabelle F. Charlson returned the 1% royalty assignment. Further negotiations took place looking towards a solution of the attempt to pay her back the money she had advanced or give her property for it. On October S, 1938, Alvin wrote:

“Dear Ella and Folks, * * * Now Nordin will not leave here until sometime after we receive your answer to this letter. He has wanted both Mabelle and I to accompany him. But this we feel would be a needless expense. We told him that Carl would take care of him, which I am sure he will be glad to do * * *. However, since there is no certainty about oil, we wondered if you wouldn’t think with us that something tangible might be given Mabelle, so if the worst comes to worse, there might be someway that the money advanced might be gotten back. We have in mind the Barstad Farm (720). Of course, the oil royalties to he divided as if the Estate owned it so you would reap just the same if oil comes * * (Emphasis supplied.)

Here it is apparent that Alvin is proposing on behalf of his wife to Ella and the others a division of the oil royalties so that you, meaning them, would reap the same if oil comes. The proposal of a division of the oil and gas lease was not made dependent upon the existence of any particular oil and gas lease. It is a proposal for a division of the oil and gas royalties on a permanent basis.

On October 7,-1938, Carl replied to Alvin’s letter of October 6th. He says:

“Dear Folks,
“Just received your letter. Your proposition is 100% with us. (Ella and I). T. E. is not home but I am sure that you can go ahead on your deal. It might be the best way out. The Estate could deed to Mable the 720 A. and it might be best to handle the other properties in the same transaction, so if you get title to the 720 A except the 6% royalty to the 4 of ^jg ⅜ ⅜ ⅜ **

Here we have an offer and an acceptance of a division of the oil and gas royalties on a permanent or perpetual basis. All were to share — “royalties to he divided as if the Estate owned it * * * so you would reap just the same if oil comes.’1 (Emphasis supplied.)

Apparently sometime after this correspondence, Mr. Nordin went to Willis-ton and an arrangement was made to deed the “Mile Quarter” to Mabelle and divide the royalties. On November 23, 1938, Carl wrote:

“Regarding the papers, will get these out as soon as T. E. get so he can write his hands have been swollen and very painful * *

This indicates that some papers had been prepared and sent for signature.

In a letter dated December 13, 1938, Carl apparently refers to a letter which is not in evidence. He says:

“I am so sorry that my letter caused you pain and sorrow. We had hoped that we could have carried our end through without a hitch. As far as the delay in returning the papers, we might say that, at the time we received them I took them up to T. E.’s and asked him to look them over, but due to his illness said he did not feel able just then. Now as to being sick I know that he was suffering and there was nothing to do until he felt better. When he had looked them over later, and I called he said he would not include the mile quarter in the deed as that was not in the original deal or covered by the mortgage. I tried to convince him that, we should and gladly, deed this to Mabelle. But he was in no condition to argue the matter then so we had to wait til such time as he would feel better. His right hand was badly swollen and he had to put it hot water to relieve the pain, so it was not very pleasant to disturb him * * *. We therefore are keenly disappointed over our failure to carry this deal through to a happy conclusion * * *. Regarding the mortgage to Harriet, will say that this was not mentioned til Mr. Nordin told me he wanted same, I felt this would cause a bone of contention, so I told Mr. Nordin that we would give it but that I thought the royalty should be assigned first. He advised me that all the royalty should be assigned first * * *. You may rest assured that we will not file our assignments * * *.”

It is evident from this letter that the agreement to deed the Mile Quarter to Mabelle F. Charlson was the subject of disagreement on the part of T. E. Charl-son. It is also apparent that royalty assignments had been made and that Mr. Nordin indicated that they should be made.

On December 16, 1938, Alvin wrote:

“Dear Carl and All,
“I am enclosing herewith a copy of the letter you wrote us on October 7th which was in answer to my letter of the 5th. I thought that it might not be clear to you just what you had written. It was this letter that gave us the consent and courage as well to proceed, and on the strength of your saying that you were with us 100%. We all make mistakes I know, but if you1 had only advised us the minute T. E. came home that he was not agreeable to the plan * * *. T. E. said that this 160 A mile quarter was not in the original deal, that is true but it was 'included in our proposal of the 5th of October * ⅜ *.”

Further negotiations then took place. T. E. finally agreed to deed the-Mile Quarter. On March 11, 1939, Carl..wired:

“Have secured compliance of your request.”

As of that date negotiations had reached the point where all of the parties were willing that the Mile Quarter be deeded. The royalty assignments had been made December 7, 1938.

The plaintiff, Mabelle F. Charlson, claims that under the terms of the resolution the royalty assignments were limited to the California oil and gas lease in existence at the time of the deed issued to her, April 12, 1939; that they were fraudulent because they were permanent, perpetual, oil and gas rovalties; and that the intent of the resolution was to limit them to the lease in existence at the time. The deed was subject to: “* * * twelve and one half per cent oil and gas royalty, which oil and gas royalty has heretofore been assigned.” This follows the description of the land. In the habendum clause of the deed it is stated: “to have and to hold the same * * *; that the same are free from all incumbrances save and except as aforesaid.” The deed makes no reference to whether the royalty assignments are term or perpetual. It makes no designation or division of them to any person or persons. Nor does it refer to any resolution adopted by the grantor. So no matter how we construe the deed, the royalty assignments outstanding are valid under its terms.

The resolution can only have a bearing upon the agreement reached if its terms constitute the perpetration of fraud upon the plaintiffs.

There can be no actual fraud without misrepresentation. 37 C.J.S., Fraud, § 7, p. 223; Powell v. Goldsmith, Tex.Civ.App., 164 S.W.2d 45, 46; Koen v. Cavanagh, 70 Ariz. 389, 222 P.2d 630.

The resolution came into being several months after an agreement had been reached; about a year after the plaintiff, Mabelle F. Charlson, had advanced money to the Charlson Estate, a corporation.. The record does not disclose that any representations were made to Mabelle F. Charl-son as an inducement to advance the money to the corporation. She had previously agreed to take a 1% unlimited royalty on the 720 acres. If the terms of the resolution are to be construed as asserted by the plaintiff, Mabelle F. Charlson, then it would have the effect of changing the nature of the agreement. It is manifest from an analysis of the facts that the alleged terms of the agreement contained in the resolution were not based upon any representations or promises made to Mabelle F. Charlson preceding the advance of the money. Its contents even if construed as she contends it should be, did not result in any change of position so far as she was concerned. No actionable fraud is, therefore, involved and the resolution becomes entirely immaterial. Whatever the meaning of the resolution it can have no bearing on the prior agreement and the deed issued pursuant thereto. There was no actual fraud involved ' in the assignments of the perpetual oil and gas royalties.

The judgment of the trial court is affirmed.

BURKE, C. J., and SATHRE, MORRIS and GRIMSON, JJ., concur.


source: Caselaw Access Project

author: GRIMSON, Judge.

license: Public Domain

text:
    Grace KING, Plaintiff and Respondent, v. Freddy MENZ, Defendant and Appellant.
    No. 7522.
    Supreme Court of North Dakota.
    March 5, 1956.
    Rehearing Denied March 29, 1956.

      Leslie R. Burgum, Atty. Gen., and T. H. H. Thoresen, Asst. Atty. Gen., for appellant and for the N. D. Unsatisfied Judgment Fund.
    J. K. Murray, Bismarck, for respondent.
   GRIMSON, Judge.

On August 27, 1954, an action was started by Miss Grace King against one, Freddy Menz. The complaint alleges that the defendant was a resident of Poplar, Montana; that he had never been a resident of North Dakota; that he was using the highways of North Dakota for the operation of an automobile; that while so driving and operating his automobile on May 29, 1954, in Sioux County, North Dakota, on Highway No. 21, the defendant, while under the influence of intoxicating liquor, operated his automobile in a grossly negligent manner; that he drove off the highway into a- ditch causing said automobile to roll over four or five times, inflicting serious injuries upon the plaintiff who was riding as k guest in 'his automobile. Plaintiff asks damages for such injuries.

No service of this summons and complaint was made upon the defendant. It was admitted that he had left the state immediately afte'r the accident and never returned. On' August 31, 1954, service was admitted by the “Attorney General of North Dakota, attorney for unsatisfied judgment fund for the State of North Dakota,” and by the “Highway Commissioner for the State of North Dakota.” Upon that service the case was tried on its merits and judgment rendered for the plaintiff. An appeal is taken by the attorney general allegedly on behalf of the defendant and the unsatisfied judgment fund.

At the opening of the hearing in this court a motion was made by the plaintiff to dismiss the appeal on the grounds that no statutory undertaking for costs on the appeal as required by Section 28-2709, NDRC 1943, had been served or filed. Plaintiff claimed the appeal was taken by the defendant. There is nothing in the record to show any authority for the attorney general to appear on behalf of Freddy Manz, the defendant, who was never served. It is clear, however, that this appeal was taken by the attorney general in a purely official capacity as attorney for the unsatisfied judgment fund and that no undertaking is necessary. Section 28-2719, NDRC 1943.

The question immediately arises whether the admission of service of the summons and complaint by the attorney general and highway commissioner without any service on the defendant gave the district court jurisdiction to proceed in this matter. The question of jurisdiction should be investigated and. decided as soon as . it appears. If the court did'not have jurisdiction of the matters involved the proceeding would be in vain and the judgment a nullity. It is necessary, therefore, that every court should so far entertain a case as to determine whether it has jurisdiction. Schillerstrom v. Schillerstrom, 75 N.D. 667, 697, 32 N.W.2d 106, 2 A.L.R.2d 271. Every court of general jurisdiction has power to determine whether the conditions essential to its exercise of jurisdiction exist. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578.

In Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909, 932, the court says: -

“A challenge to the' jurisdiction of the trial court of the subject-matter of the action is proper at any time; and, without the question being urged by counsel. It is not only proper for this court, but if is its duty, to make all investigations necessary to satisfy itself in regard thereto with reasonable certainty. Pollard v. Wegener, 13 Wis. 569; Damp v. Town of Dane, 29 Wis. 419; Butler v. Wagner, 35 Wis. 54; Mathie v. McIntosh, 40 Wis. 120; Meyer v. Garthwaite, 92 Wis. 571, 66 N.W. 704; In re Klein, 95 Wis. 246, 70 N.W. 64; Burnham v. Norton, 100 Wis. 8, 75 N.W. 304, 12 Ency.Pl. & Pr. 187, 190:
“ ‘When it appears that the court has no jurisdiction over the subject-matter of the suit, it will take notice of the defect whether objection is made or not, and will dismiss or stay proceedings ex mero motu, [Of ones own accord] and it is its duty to do so without determining any other matter involved in the litigation.’ [Emphasis supplied.]
“The instances are very rare where any court has ventured to invade this salutary doctrine for the purpose of saving a party from the consequences, however severe. It would be difficult to assign any justification for such an invasion that would leave it free from condemnation as an act of usurpation, as it goes to the question of power. A court is all-powerful within its jurisdiction, but is absolutely powerless in any legitimate sense when acting outside thereof.”

Jurisdiction relates to the power- of the court to hear and determine the matter in issue.

“The ‘subject-matter of a suit,’ when reference is made to the questions of jurisdiction, means the nature of the cause of action, and the relief sought.” Patterson Land Co. v. Lynn, 44 N.D. 251, 254, 175 N.W. 211, 212. To have jurisdiction the court must have the power to inquire into the facts, apply the law, and to determine and pronounce the judgment. Rasmusson v. Schmalenberger, 60 N.D. 527, 235 N.W. 496; Christenson v. Grandy, 46 N.D. 418, 426, 180 N.W. 18; Schillerstrom v. Schillerstrom, 75 N.D. 667, 698, 32 N.W.2d 106, 2 A.L.R.2d 271; 21 C.J.S., Courts, § 23, p. 36. Baily on Jurisdiction, Section 4, p. 3.

The first question to determine in this action is whether the court has any jurisdiction over the defendant.

This is not an action that may be brought directly against the fund under Section 39-17031, 1953 Supp. NDRC 1943, when the identity of the person against whom an action for damages, resulting from the operation of a motor vehicle in this state might be brought, cannot be ascertained. The person claimed to have caused the damages in this case is known and made a defendant in this action. No service of the summons and complaint was made upon him. It appears that he was a non-resident but that does not mean that service on him can not be had. In 1935 our state legislature provided a manner of making service in cases of this kind. Section 1, Chapter 174, 1935 S.L., provides for service of a non-resident driver of a motor vehicle on the highways. It reads as follows:

“The use and operation by a nonresident or his agent of a motor vehicle upon and over the highways of the State of North Dakota, shall be deemed an appointment by such nonresident of the Commissioner of Insurance of the State of North Dakota, [This was changed to ‘Highway Commissioner’ in Chapter 202 S.L.1951] to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him growing out of such use or operation of a motor vehicle over the highways of this'state, resulting in damages or loss to person or property, and said use or operation shall be a signification of his agreement that any such process in any action against him which is so served, shall be of the same legal force and validity as if served upon, him personally. Service of such process shall be made by serving a copy thereof upon the Commissioner of Insurance [Highway Commissioner] or by filing such copy in his office, together with payment of a fee of $2.00 and such service shall be sufficient service upon the said non-resident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by registered mail by the plaintiff to the defendant at his last known address and return card requested and that the plaintiff’s affidavit of compliance with the provisions of this act are attached to the summons.” (Emphasis supplied.)

The revisers of the code in 1943 wrote-the first part of that section as Section 28-0611, NDRC 1943, with some changes in language and in their report to the 28th legislature made this explanation: “This section has been divided for separate statements of distinct propositions and has been revised for clarity without change in meaning.”

The revisers wrote the latter part of that section which we have underlined, into a separate section, 28-0612, NDRC 1943, which has not been changed, reading as follows:

“Within ten days after service of summons as provided in section 28-0611, notice of such service together with a copy of the summons and complaint in the action shall be sent to the defendant at his last known address by registered mail with return receipt requested, and proof of such mailing shall be attached to the summons.”

The revisers’ note on this section reads as follows:

■ “This part of the section has been revised for clarity. Provision is also made for mailing a copy of the complaint as well as of the summons in order that the defendant may have a reasonable opportunity to know the nature of the case instituted against him.”

This court has repeatedly held that changes in punctuation and phraseology in codification do not affect the original meaning of the law. State v. Tjaden, N.D., 69 N.W.2d 272. In State ex rel. Kositzky v. Prater, 48 N.D. 1240, 1248, 189 N.W. 334, 337, this court says:

“The general presumption obtains that the codifiers did not intend to change the law as it formerly existed, Braun v. State, 40 Tex.Cr.R. 236, 49 S.W. 620, 622; United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 201, 28 L.Ed. 308. Changes made in the revision of statutes by alteration of the phraseology will not be regarded as altering the law unless there is a clear intent so to do. [Citing cases.] In ascertaining the intention of language used in a code revision, reference may be had to the prior statute for the purpose of ascertaining the legislative intent. Becklin v. Becklin, supra [99 Minn. 307, 109 N.W. 243]; Stevens v. [Dixfield & Mexico] Bridge Co., 115 Me. 402, 99 A. 94.” See also Eisenzimmer v. Bell, 75 N.D. 733, 32 N.W.2d 891; State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 864; Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 35 N.W.2d 137.

It will be noted that the original provision provided that within ten days after the service on the commissioner a notice of such service and a copy of the “process” were to be sent by the plaintiff to the defendant by registered mail. That is the duty of the plaintiff in accordance with the general practice. Clearly the intent of that provision was to make service upon the defendant and to keep him advised of the charges made. The provision as revised by the code commission makes that even clearer in providing that a copy of “the summons and complaint” must be mailed which further carries out the same intention. The revisers left out the phrase “by the plaintiff” without any indication of a change in the meaning of the law. No one else was designated to mail the process. Since having service made on the defendant has always been the duty of the plaintiff' it follows that that statute as revised must be construed as a continuation of the existing statute. The duty to make the mailing as provided by the statute remained with the plaintiff.

There is no showing in the record that any attempt was made by the plaintiff to get service upon the non-resident defendant in the manner provided by the statute. Instead the plaintiff seems to have tried to obtain jurisdiction in this matter under the provisions of the unsatisfied judgment law, Section 39-1704, 1953 Supp. NDRC 1943, which reads as follows:

“The provisions of section 39-1703 [containing provisions for recovery from the fund] shall not apply in the case of any judgment entered by default, unless the state highway commissioner and the attorney general have been given at least thirty days notice prior to the entry of such judgment, to which notice shall be attached a copy of the summons and complaint. Upon receipt of such notice, the attorney general may enter an appearance, file a defense, appear by counsel at the trial or take such other action as he may deem appropriate on behalf and in the name of the defendant, and may thereupon, on behalf and in the name of the defendant, conduct his defense, and all acts done in accordance therewith shall be deemed to be acts of the defendant.”

It is clear that this provision applies only in a case where judgment might be obtained and collected out of the unsatisfied judgment fund. The provision for the appearance of the attorney general is only for the protection of the fund. It is his duty to see that no liability is created against the fund except by due legal proceedings and that no judgment be obtained by fraud or collusion. Section 39-1708, 1949 Supp. NDRC 1943, provides that any judgment obtained shall be assigned to the state treasurer “for the use and benefit of said fund.” To protect the fund in that regard there must have been service on the defendant. Until jurisdiction of the defendant has been obtained the state, as trustee of the unsatisfied judgment fund, has no interest in the matter. None of these duties of the attorney general can arise until legal service is had of the known defendant. It is only upon such service that Section 39-1704, 1953 Supp. NDRC 1943, provides for an appearance of the attorney general and then only to carry out his duties with regard to the unsatisfied judgment fund. He has no authority to appear for any other purpose. His appearance, therefore, in the case at bar did not give the court jurisdiction of the defendant.

Neither does the fact that the attorney general allegedly answered for the defendant nor that he signed the stipulation, “that this action may be tried at the December term of the district court of Burleigh County,” give jurisdiction over the defendant. The attorney general had no authority whatever from the defendant to appear for him. Jurisdiction cannot be obtained by stipulation and a judgment based thereon is void. Riebold v. Hartzell, 23 N.D. 264, 136 N.W. 247. Taylor v. Oulie, 55 N.D. 253, 212 N.W. 931.

Furthermore, it ■ is no part of the duty of an attorney nor is it within his power as an attorney to admit service of a summons and complaint and thus confer jurisdiction over the defendant. To exercise such a power he would require a special authority from such defendant. Bradley v. Welch, 100 Mo. 258, 12 S.W. 911; Reed v. Reed, 19 S.C. 548. In Taylor v. Oulie, supra, this court held that an “attorney cannot accept legal service of a summons without special authority.”

The record in this case shows that the court had no jurisdiction over the defendant.

It further appears from the record that the court had no jurisdiction of the subject-matter so as to be able to render an effective judgment. “In order for a court to have ‘jurisdiction of the subject-matter,’ the particular issue to be determined must be properly brought before it in the particular proceeding for determination.” 21 C.J.S., Courts, § 23, p. 37. See also Baily on Jurisdiction, Sec. 7, p. 8. The court must have power to deal with the subject involved and to enter judgment thereon. Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275.

This is a damage action for injuries allegedly caused by the defendant while driving an automobile on the highways of the state. The failure to serve the defendant, the prompt service upon the highway commissioner and attorney general, the trial upon their appearance for the unsatisfied judgment fund, all indicate that the object of the action was to obtain a judgment which could be collected from the unsatisfied judgment fund of the state. In failing to get service on the defendant the plaintiff failed to bring that issue • properly before the court so as to give it jurisdiction of the subject-matter and to enter judgment thereon.

There being no service on the defendant the trial court had no jurisdiction to make any order in regard to the issue raised by the complaint. It had jurisdiction neither of the defendant nor of the subject-matter. The judgment issued under such circumstances is void.

Since the district court had no jurisdiction to render any judgment in the matter it is not proper for us to pass on the matters raised on the appeal.

- The case is remanded to the district court with directions to set aside the judgment and dismiss the action.

BURKE, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur.


author: SATHRE, Judge.

text:
    Ingeborg KLEMESRUD, Lillie Klemesrud, Herbert Klemesrud, Mae Klemesrud, James R. Klemesrud, Clarence Klemesrud, Theodore Klemesrud, Ruth Klemesrud, Lorin Klemesrud, Eleanor Klemesrud, Plaintiffs and Appellants, v. Talmer BLIKRE, Edith Blikre, Edith Breckey Blikre, Ingvald Bjorndahl, Williams County, North Dakota, a public corporation, A. O. Wang, as County Auditor of Williams County, North Dakota, Hunt Oil Company, a foreign corporation, The Hunt Oil Company, a foreign corporation, Stockman Motor and Farm Equipment Company, a corporation, James G. Key, and all other persons unknown, having or claiming to have any right, title, Interest in or to, or lien or encumbrance upon the premises described in the Complaint, Defendants and Respondents.
    No. 7520.
    Supreme Court of North Dakota.
    March 5, 1956.
    Rehearing Denied March 22, 1956.

      Hyland, Foster & Conmy, Bismarck, for appellants.
    -Burk & O’Connell, Williston, for respondents, Talmer Blikre, Edith Blikre, Edith Breckey Blikre, Hunt Oil Co., a foreign corp., The Hunt Oil Co., a foreign corp.
    Bjella & Jestrab, Williston, for respondent, James G. Key.
   SATHRE, Judge.

The plaintiffs brought this action to quiet title to the following described premises situated in Williams County, North Dakota.

The Southwest Quarter (SW}4) of Section Eleven (11)' Township One Hundred Fifty-eight (158) , North, of Range Ninety-five (95) West of the Fifth Principal Meridian, Williams County, North Dakota, save and except that part thereof described as follows:

A strip of land Forty Feet (40 ft.) wide lying East of, adjacent to, and extending along the entire West line of said Southwest Quarter (SW}4) of Section Eleven (11), excepting the South Two Hundred Sixty Five Feet (265 ft.) of the North Eight Hundred Fifty-Five and Two-Tenths Feet (855.2,ft.) and excepting all that portion lying within Thirty-three Feet (33 ft.) of the Section line, and except that part thereof described as follows: A tract of land described as beginning at a stake on the Section line between Sections Ten (10) and Eleven (11) Five Hundred Eighty-one and Two-thirds yards (581% yards) North, in a straight line from the Southwest corner of said Section Eleven (11) in Township One Hundred Fifty-eight (158) North, of Range Ninety-five (95) West of Fifth Principal Meridian, Williams County, North Dakota, running thence east at right angles to said Section line a distance of Two Hundred Ten yards (210 yards) to a post; thence North parallel with said first described Section line a distance of Eighty-eight yards (88 yds.) to a post; thence running West at right angles to said last described line a distance of Two Hundred Ten yards (210 yds.) thence South on said Section line a distance of Eighty-eight yards (88 yds.) to the point of beginning. Said tract being situated in the Southwest Quarter (SW>4) of Section Eleven (11), Township One Hundred Fifty-eight (158) North, of Range Ninety-five (95) West of the Fifth Principal Meridian, Williams County, North Dakota.

The plaintiffs, ten in number, are the heirs at law and next of kin of Harold Klemesrud deceased, a resident of Mitchell County, Iowa, who died in October 1935. At the time of his death he was the owner of the land described in the complaint. The plaintiff Ingeborg Klemesrud is the surviving widow of said deceased, and the plaintiffs Herbert Klemesrud, Clarence Klemesrud, and Theodore Klemesrud are the sons of said deceased; Lillie Klemes-rud, Ruth Klemesrud and Eleanor Klemes-rud are daughters of said deceased; Mae Klemesrud is the widow of Olaf Klemesrud, a deceased son of said deceased, and James Klemesrud is the son of the deceased son and Mae Klemesrud. All of the plaintiffs are residents of Mitchell County, Iowa, except Eleanor Klemesrud who is a resident of the State of New Jersey. There are two groups of defendants, in this action. One group consists of Talmer Blikre and his wife Edith Blikre and Hunt Oil Company, a corporation. .The Blikres claim title thx-ough a conveyance from Williams County which acquired its title through tax deed-proceedings. The Hunt Oil Company claims to be the owner of an oil and gas lease executed by Talmer Blikre and wife. The . other defendants are Williams County, North Dakota, James G. Key and others and all other persons unknown etc., but all of said defendants, including Williams County defaulted, except the defendant James G, Key, who claims to he the owner of oil and gas leases executed by the plaintiffs.

The plaintiffs claim their title to the land described in the complaint as the heirs at law and next of kin .of said Harold Klemesrud deceased. They challenge the validity of the tax deed proceedings of Williams County' under which the defendants Blikre and the Hunt Oil Company claim title. The defendant James G. Key is the holder of oil and gas leases executed by the plaintiffs. He-joins with the plaintiffs in challenging the validity of the tax title proceedings, conducted by Williams County, and alleges that he is holder, of oil and gas leases executed by the plaintiffs. The plaintiffs however contend that the oil and gas leases held by the defendant Key were obtained through fraud and misrepresentation and are void.

The issues presented are therefore first, the question as to the validity of the tax deed proceedings had by Williams County. If the proceedings are found to be regular and valid, the defendant Blikre is the owner of the land involved and the lease of the Hunt Oil Company is a valid lease, and the title claimed by the plaintiffs must fall. On the other hand, if the tax deed proceedings had by Williams County are void, the plaintiffs are the owners of the land in controversy; and if the plaintiffs are the owners then the question arises as to the validity of the leases held by the defendant James G. Key.

The case was tried in the district court of Williams County, before Hon. A. J. Gronna,;, District Judge, without a jury. The district court found for the defendants Blikre and the Hunt Oil Company and judgment was entered accordingly. The plaintiffs appealed and demanded a trial de novo in this court.

The plaintiffs contend that the tax deed proceedings had by Williams County are fatally defective for the following reasons:

1. That there was no valid assessment and levy of taxes against the land involved for the years 1931 -and 1932.

2. That the certificate of sale issued to Williams County at the tax sale December 1932 was defective.

3. That the notice of expiration of the period of redemption was defective and that it was not served as provided by law.

4. That the deed to Williams County was prematurely issued.

5. That the tax deed issued to Williams County was not issued in the name of the state as required by law.

We shall consider these points in the order stated.

It is contended that the real' property assessment for 1931. was defective because of insufficient description of the land involved. A photostatic copy of the assessment list was introduced in evidence as plaintiffs’ exhibit 6. On this list is shown the names of the landowners and the description of the land owned. All of the lands are described by abbreviations, and the name of the owner and description in the instant case is as follows:

Harold Klemesrud SW ex 3A church Sll T1S8 R95

Section 57-0202, NDRC 1943 authorizes the use of abbreviations in all proceedings, lists, advertisements, notices and documents relative to assessing, advertising, or selling of real estate for taxes or special assessments. Subdivisions 2, 3 and 4 of said section are as follows:

“2. Whenever the letters N., E., S., W., are used, they shall be construed to mean north, east, south, and west, respectively ;
“3. Whenever there shall be used the initial letters N*.W., SW., N.E., S.E., whether in capital letters or small letters, and whether each letter is followed by a period or the two are written connectedly without a period to signify the same to he an abbreviation of two words-, and whenever said letters shall be used in connection with section numbers to designate land descriptions, and in the absence of proof to the contrary, it shall be presumed that the same are abbreviations for and mean ‘northwest’, ‘southwest’, ‘northeast’, and ‘southeast’, respectively;
“4. When two or more sets of such abbreviations shall be used con-nectedly, as N.E., S.E., the same shall be presumed to mean the ‘northeast quarter of the southeast quarter’

Under the provisions of the statute quoted the letters SW must be held to mean Southwest quarter. Sll certainly has reference to the number of the section; T refers to township, and R refers to range. Thus we have southwest quarter of section 11, township 158, range 95. There also appears the letters ex 3A church, and after the description appears the number 157. We do not think that the description is misleading. Under the statute quoted there cannot be any doubt that the abbreviation SW means the southwest quarter, T means township, and R means range. It is true that subdivision 8 of section 57-0202 states that “sec” shall be taken to mean “section”. In the instant case, however the capital letter “S” and the number “11” appear together thus “Sll”; which when read together with the preceding characters we think it is clear that the letter “S” must be held to mean section. With reference to the letters “ex” followed by “3A church” they must be taken to mean except three acres owned by a church and are therefore excluded from taxation. This is made clear by the number 157 which indicates that 157 acres are left subject to taxation. The plaintiffs are charged with knowledge that the land is subject to taxation. They do not contend that the tax levied is excessive and it does not appear that they are prejudiced in any way because of any insufficiency in the description of the land. The plaintiff Ingeborg Klemesrud, testifying by deposition, stated that her husband purchased the land in question in 1913 and that he had paid the taxes on the land to 1931 but that no taxes had been paid thereafter. We conclude therefore' that the assessment and the levy of the real estate taxes for the years 1931 and 1932 are not subject to attack on the ground of insufficiency of the description of the land.

In the second ground it is contended that the certificates of sale issued to the county for the taxes of 1931 and 1932 are defective in that they recite that the land was sold to the county upon competitive bids. The certificates recite that “he being the bidder who agreed to accept the lowest rate of interest from the date of sale on the amount of such taxes, penalties, and costs so paid by him, and that said rate of interest which said purchaser so agreed to accept, was nine per cent per annum.”

The question here raised was before this court in the recent case of Coulter v. Ramberg, 79 N.D. 208, 55 N.W.2d 518. In that case we said:

“Plaintiffs claim this indicated that Williams County became a competitive bidder at the sale contrary to law. State ex rel. Atkins v. Lawler, 53 N.D. 278, 205 N.W. 880. Chapter 289, S.L.1931, provided that if any tract remained unsold for want of bidders it should be again offered before the sale closes and ‘if there is no other bidder he (county treasurer) shall bid for the same in name of the county and the same shall be struck off and become forfeited to the county in which the sale takes place * * *.’ Said Chapter further provides that: ‘Whenever any real property shall be sold to the county, the county auditor shall make out certificate of sale to the county in the same manner as if sale had been made to any other person which certificate shall be retained by the county treasurer * * Thus the law provides only one form of certificate and says that when the land is sold to the county, the auditor shall make -out a certificate 'in the same manner’ as other certificates of sale. (Emphases supplied.) The fact that the certificate shows 9 per cent, the highest rate allowed by law, Chapter 289, S.L. 1931, is in harmony with the view that there was no competitive bidding.
“We hold the county auditor’s certificate of sale to Williams County is valid.”

In the third ground it is contended that the notice of expiration of the period of redemption was defective and that it was not served as provided by law.

A copy of the notice was admitted- in evidence as plaintiffs’ exhibit 15, it being the notice received by the plaintiff Ingeborg Klemesrud, the surviving widow of the owner of the land, Harold Klemesrud deceased. The notice is in the identical form prescribed by Chapter 235, Laws of 1939, an emergency statute, which was in force at the time of service of the notice of expiration of the period of redemption. The notice is as follows:

“Notice of Expiration of Period of Redemption
“To Harold Klemesrud, the record title owner of the Real Estate hereinafter described and to all mortgagees, Lien holders, or other persons interested in said Real Estate and to the person in possession thereof;
“I, Morten Mortenson, County Auditor of Williams County, North Dakota, hereby give notice that the following described “Real Estate to*wit: '
“Subdivision Sec or Town or Range, Total Amount Lot, Block, Necessary to Redeem.
“SW ex 3A 11 158 95 $208.04
“was at a Tax Sale held in said County on the 13th day of December, 1932 offered for sale for delinquent taxes against it and was sold to said county and that there are due and unpaid taxes, penalty and interest and cost upon and against said Real Estate at the date of this notice the sum, of Two hundred eight and 4/100 Dollars, including subsequent taxes for the years 1932 and peiialty and interest thereon and that redemption has not been made therefrom, and that the same is still the property of such County and unless redemption is made from such tax sale on or before the first day of October after the date of this notice appearing above my signature, Tax Deed will be issued to the County granting to it and vesting in "it absolute Title in fee to said property and foreclosing all rights of redemption and all other fights of the owner and all Mortgage or Lien holders and other persons interested therein as may appear from the records of the Register of Deeds and Clerk of the District Court of said county. There is given herewith the description of such parcels of Real Estate and set opposite each description is the amount that will be required upon the date of the expiration of said period of redemption to redeem such Real Estate from such Tax Sale exclusive of the cost of serving this notice upon the owner and the persons in possession thereof.
“Given under my hand and the seal of the County Auditor of Williams County, North Dakota this 20 day of May 1939.
“Morten Mortenson
“County Auditor of Williams County
“State of North Dakota.”

At the time the notice was issued the record title was in the name of Harold Klemes-rud, Post Office address Osage, Iowa, as shown by plaintiffs’ exhibit 42 the certificate of the register of deeds of Williams County, furnished upon the request of the county auditor.

The plaintiff Ingeborg Klemesrud, testifying by deposition stated that she received by registered mail, plaintiffs’ exhibit 15 and that said exhibit was headed Notice of Expiration of Period of Redemption and that it was signed Morten Mortensen, Auditor, Williams County. She testified further that it gave the description of the land as follows: Subdivision SW ex 3A, Section 11, Township 158, Rge. 95 and that the amount stated to be due was $208.04 and that she received the notice May 31, 1939. She was asked if the description was clear to her, and she answered “No it was not”.

Plaintiffs contend that it is not shown that service of the notice of expiration was served upon the other plaintiffs and that therefore the service was defective. . We think there is no merit to this contention. The names of these plaintiffs did not appear in the records of Williams County as owners. The only owner shown as appears by plaintiffs’ exhibit 42, the certificate of the register of Deeds, is Harold Klemesrud. The notice was admittedly received by the plaintiff Ingeborg Klemes-rud, surviving widow of Harold Klemesrud, who according to her own testimony was the administratrix of the estate of said Harold Klemesrud, deceased.

We think it clear that the notice of expiration of the period of redemption was served as provided by law. The statute, Chapter 235, Laws of 1939 provides that if the owner does not reside in the state, service shall be made upon him by the county auditor by registered mail, addressed to him at his post office address as shown on the records in the office of the register of deeds and clerk of the district court. In the instant case the certificate of the register of deeds shows that the record owner is Harold Klemesrud and that his post office address is Osage, Iowa. The notice was sent to him at that post office address and was received by his surviving widow who also was the administratrix of his estate in Iowa. The law was therefore fully complied with in matter of service of the notice of expiration of the period of redemption.

The next ground urged is that the deed to Williams County was prematurely issued. This contention is based upon the provisions of Chapter 227 of the Session Laws of 1939 which provides that settlement of delinquent taxes could be made up to March 1, 1940 by paying the, original tax without interest and penalty. The deed to Williams County was issued March 1, 1940. It is claimed therefore that the county deed could not be legally issued until after March 1, 1940. This question was before this court in the case of Coulter v. Ramberg, supra. In that case we said:

“The avowed purpose of Chapter 227, as stated in Section 5 thereof, is to provide for .the settlement of delinquent taxes without the payment of penalty and interest in order to permit taxpayers to place themselves upon a current tax paying basis. This statute contains no reference to the expiration of periods of redemption from tax sales or to any amount which must be paid to redeem from a tax sale. If it is to be construed to extend the time to redeem and to reduce the amount of money required to be stated in the notice of expiration of redemption as the amount necessary to effect a redemption, that construction must be reached by inference and not from any of the express provisions of the statute. Such an inference would be contrary to the express provisions of Chapter 235, Laws of N.D.1939 and, would, therefore, amount to a repeal by implication, of these provisions. Repeals by implication are not favored and courts will not find such a repeal to have been effected if there are reasonable grounds to hold to the contrary. City of Fargo v. Ross, 11 N.D. 369, 92 N.W. 449; State ex rel. Coghlan v. Poindexter, 49 N.D. 201, 190 N.W. 818; State v. Osen, 67 N.D. 436, 272 N.W. 783. * * *
“It is clear from a consideration of these provisions that we cannot hold that Chapter 227, supra, by implication, extended the period of redemption from those sales where the period of redemption would ordinarily expire on October first 1939, to March first, 1940, because the authority of county auditors to give notice of the expiration of the period of redemption is limited to cases where the period would expire on October first. Either Chapter 227, supra, in no way repealed or modified the provisions of Chapter 235, supra, or if it did, then it completely did away with the rights of counties to mature their tax title by giving notice of the expiration of the period of redemption, from the effective date of Chapter 227, until June 1940: The latter construction would, in our opinion, he unreasonable. It would be inconsistent with the fact that the legislature of 1937 abandoned its policy of extension of time for payment of taxes and mor-atoria on tax deed .proceedings.”

Clearly there is no merit to plaintiffs’ contention.

It is next argued that the notice of expiration of the period of redemption is defective in that it fails to state separately the amount of taxes with penalties and interest due for each year. It is true that section 57-2803, NDRC 1943 provides that the taxes, penalty and interest shall be stated separately for each year. However this, statute was enacted by the Legislative Session of 1941. It was- not retroactive and therefore could have no application to tax deed proceedings had prior to its enactment. Plaintiffs cite the case of Kelsch v. Miller, 73 N.D. 405, 15 N.W.2d 433, 155 A.L.R. 1186 as supporting their contention. In this they are in error. The notice of expiration of period of redemption did not state separately the amount of taxes, penalty and interest due each year, but showed the different items which made up the total tax due as follows:

“Total Am’t necessary to Redeem
53 77 Sub
477 5 Sub
50
102 02”

Under the form of notice in that case the redemptioner, in order to redeem, was required to pay the total of thé items as shown in the notice of redemption. The years were not stated separately in the notice. There is therefore, no material difference between that notice and the notice in the instant case.

A photostatic copy of the published notice of expiration of the period of redemption in the form provided by statute was introduced in evidence as plaintiffs’ exhibit 19A together with the affidavit of the publisher that the same was published in the Willistón Herald, a daily newspaper published ‘ in the city of Willistón, Williams County, North Dakota on August 1, 1939. No redemption was made by any of the plaintiffs and on March 1, 1940, a deed was issued to Williams County as provided by section 57-2705, NDRC 1943.

The plaintiff contends that the deed issued to Williams County, was void for the reason that it was not issued in the name of the State of North Dakota. A photostatic copy of the deed was admitted in evidence as plaintiffs’ exhibit 5. The form of the tax deed, is prescribed by Section 57-2706, NDRC 1943, and the tax deed issued to the county is in the identical form prescribed by said section 57-2706. It recites :

“This Identure, made this first day of March A. D. 1940 between the State of North Dakota, by Morten Morten-sen, as county auditor of the said county, party of'the first'part, and the said county of Williams, party of the second part.”

Then follows the granting' clause and description of the land granted and the habendum clause which is in the identical form- prescribed by the statute. Plaintiffs’ objection to the form of the deed to Williams County is therefore without merit..

From the record- before us we conclude that the' tax deed proceedings had by Williams County were in strict compliance with the applicable statutes; and no redemption having been made by any of the plaintiffs, the title to the land involved in the instant case became vested in fee simple in Williams County and its assigns as provided by section 57-2705, NDRC 1943, and that any title or interest of the plaintiffs in and to said land was thereby wholly cut off and extinguished. The leáses claimed by James G. Key to have been issued to him by the plaintiffs are therefore of no effect and void.

On October 13, 1943, the defendant Talmer Blikre made 'application to the county commissioners of Williams County for the purchase of the land here involved. . The. application was granted and he executed an installment contract for deed upon which he made a first payment of $275. On November 17, 1943, the auditor of Williams County prepared a Notice to Former Owners, Executors, Administrators or Members of the immediate family, plaintiffs’ exhibit 17, and sent the same by registered mail to Harold Klemesrud at Osage, Iowa. It was received by Inge-borg Klemesrud on November 19, 1943. The notice was in the usual form and stated:

“You are notified that the following real estate SW ex 3 acres Sec. 11, Twp. 158, Rge. 95 of which you were formerly the owner has been sold and that according to the provisions of House Bill 127, Session Laws 1943 [c. 121], you, or your executor, or administrator, or any member of your immediate family 'have 30 days from the date of this notice in which to make redemption. .
“The amount necessary to make such redemption, if paid in full at the time of application is $682.18, and if purchased under Contract for Deed the purchase price is $680.93, one-fourth cash and the balance in yearly payments at four (4) per cent interest.
“Unless this property is repurchased within the 30 day limit the sale of this property is final and you have no further recourse.
“Dated this 17th day of November, 1943.
“Morten Mortenson, County Auditor.
Note Carefully
You are further notified that there is summer tillage on above described land which must be paid by you in cash in addition to the amount given by the County Auditor as follows:
“22.4 acres — strip fallow'
“22.4 acres @ 1.40 per acre=31.36
Dated this 13 day of November 1943.
“O. N. Lee
“Agent of County Owned Land.”

With reference to this notice the plaintiff Ingeborg Klemesrud,' surviving widow of Harold Klemesrud, testified, by deposition as follows:

“Q. Now, Mrs. Klemesrud, I will hand you exhibit D, Plaintiffs Exhibit 17, and ask you if you can identify that for us. A. This is a notice sent by Morton Mortenson, 1943.
“Q. Does it say what kind of a notice it is on the top?, A. Notice to former owners, executors, administrators or members of the immediate family.
“Q. Now, you won’t have to- read it all Mrs. Klemesrud. Did you tell us who signed that or whose name appeared on it? A. Morton Mortenson.
“Q. Who is it addressed to? A. Harold Klemesrud.
“Q. Did you receive that notice? A. Yes.
“Q. Is there a date on the notice? A. November 1943, and that notice stated we had 30 days in which to redeem the land.
“Q. Is the description the same as in the other notice you testified to? A. Yes, it is the same.
“Q. Does it give the amount of taxes necessary to redeem ? A. $680.-93, and $31.36 for summer fallow.
“Q. Mrs. Klemesrud, I will hand you exhibit E and ask you if you can identify that? A. It is the envelope that contained this notice.
“Q. This last notice you are talking about? A. Yes.
"Q. Now, do you know about when you received that last notice ? A. November 19th, 1943.
“Q. Did that come to you by registered mail? A. Yes, it did.”

The plaintiff Ingeborg Klemesrud and eight of the other plaintiffs were residents of Mitchell County, Iowa,' near the city of Osage, their post office. They were all of mature age and from the testimony given in their depositions they evidently possessed ordinary intelligence. They all had notice of the service of the notice of expiration of the period of redemption shortly after it was received by Ingeborg Klemes-rud, surviving widow and administratrix of the estate of her husband Harold Klemes-rud, deceased. They likewise' had timely notice of their right to repurchase the land. The notice of the right to repurchase was received by Ingeborg Klemesrud^ November 19, 1943, but none of the plaintiffs made any attempt to repurchase the land. Thereafter the contract of sale to Talmer Blikre was approved by the county commissioners of Williams County. Talmer Blikre made the final payment under his contract for deed and he received a deed in due form from Williams County on November 18, 1947.

Plaintiffs argue, however, that the defendant Blikre was a tenant in possession of the plaintiffs and that therefore he was barred by section 28-0112, NDRC 1943 from taking title to the land involved. Said statute is as follows:

“Whenever the relation of landlord and tenant shall have existed, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy, or, when there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title or may have claimed to hold adversely to his landlord. Such presumptions shall not be made after the periods herein limited.”

The evidence shows that on June 11, 1938 the defendant entered into a written lease, plaintiffs’ exhibit 1, for farming the land during the farming season of 1938 from April 1, 1938 to November 1, 1938. The lease was signed by Talmer Blikre, and by V. A. Heiberg as agent for Harold Klemesrud. Of course, Harold Klemesrud had been dead for three years when this lease was executed by Heiberg. His estate had been probated and the administration thereof closed in 1937, and no probate proceedings had been had in North Dakota. Nevertheless the land was farmed by the defendant Blikre under said lease as stated therein during the farming season of 1938. He also farmed it in 1939 under an oral agreement with the said Heiberg. Under the terms of the lease the owner was to receive one fourth of the crops raised and delivered to the elevator, and the tenant was to receive three-fourths of the crop, furnish the seed and pay all the expenses. Williams County took title to the land through tax deed proceedings and deed was issued to the County March 1, 1940, and any interest the plaintiffs had in the land was thereby extinguished.

Williams County thus acquired a new and independent title by which it became the absolute owner in fee simple of the land involved. The defendant leased the land from Williams County during the years 1940, 1941 and 1942 and in 1943 he purchased the land from Williams County under a contract for deed. The contract was paid in full and a deed issued to Talmer Blikre in 1947.

It is clear therefore that the title of the defendant Blikre was not acquired through any advantage taken by reason of existence of the relation of landlord and tenant between him and the plaintiffs.

A question identical to that raised by the plaintiffs was before this court in the case of Hebden v. Bina, 17 N.D. 235, 116 N.W. 85, 807. Section 28-0112, NDRC 1943 was in full force and effect when that case was decided in April 1908 and appeared in the identical form as section 5196, R.C. 1895. In that case this court said:

“But, conceding that appellant succeeded in establishing that defendant was holding merely as his tenant, it is well settled that a tenant is not es-topped to deny his landlord’s title' in an action1 such as this, but he is thus estopped merely in actions arising out of the relation of landlord and tenant. 18 A. & E. Enc. Law. 419-421; 25 Cyc. 942, and cases cited; Jochem v. Tibbells, 50 Mich. 33, 14 N.W. 690;. Shaw v. Hill, 83 Mich. 322, 47 N.W. 247, 21 Am.St.Rep. 607; Knefel v. Daly, 91 Ill.App. 321; Young v. Severy, 5 Okl. 630, 49 P. 1024; McKie v. Anderson, 78 Tex. 207, 14 S.W. 576; Van Winkle v. Hinckle, 21 Cal. 342; Franklin v. Merida, 35 Cal. 558, 95 Am.Dec. 129.”

The opinion was quoted with approval in the more recent case of Eikevik v. Lee, 73 N.D. 197, 13 N.W.2d 94, 96. After quoting the exception in the Hebden Bina case we said:

“That case involved a statutory action to determine adverse claims to real property and is directly in point. The exception thus stated was later recognized in Lincoln Nat. Life Ins. Co. v. Sampson, 61 N.D. 611, 239 N.W. 245. The exception, although of somewhat recent origin, has been applied in many cases where the landlord seeks a judgment that will preclude the tenant as to an interest in the land greater than is necessary to support the tenancy. See cases cited in the following notes. 89 A.L.R. 1295, 29 L.R.A.,N.S., 85; Annotated Cases 1912D, p; 104. In this case there is no issue involving the lease. The plaintiff seeks to determine all adverse claims in his ■favor and establish the fee title in himself. Thus he would preclude or destroy any title which the tenant might have in the fee itself. The operation of estoppel would be inequitable.”

■ Since we have arrived at the conclusion that the tax deed proceedings had by Wil-' liams County were regular and in compliance with statutory requirements it- follows that the defendant Talmer Blikre is the owner of the land in controversy and that the lease issued by him to Hunt Oil Company a corporation is a valid lease.

The judgment of the district court is affirmed.

BURKE, C. J., and MORRIS, GRIM-SON and JOHNSON, JJ., concur.


author: MORRIS, Judge.

text:
    Jeanette STROM, Plaintiff and Respondent, v. Melvin STROM, Defendant and Appellant.
    No. 7576.
    Supreme Court of North Dakota.
    March 23, 1956.

      Kelsch & Scanlon, Mandan, for defendant and appellant.
    Strutz, Jansonius & Fleck, Bismarck, for plaintiff and respondent.
   MORRIS, Judge.

The plaintiff seeks a divorce from the defendant on the ground of cruelty. The defendant denies the allegations of plaintiff’s complaint and counterclaims for annulment of the marriage which took place on February 25, 1954, on the ground that he was induced to enter therein by fraud and deceit practiced on him by the plaintiff.

The parties first met early in January 1953 when they were members of a group of six young people that attended a dance. They had sexual intercourse at that time. They had frequent dates together until the first or second week in March. On most of those occasions they had sexual intercourse. During that time the plaintiff was the wife of a man who was in military service. The defendant knew of the plaintiff’s married status. In April 1953 the defendant quit his employment as a barber in Steele and went to live with his father on a farm near Hazelton. Shortly thereafter the plaintiff’s husband returned to Steele and on July 16 the plaintiff and her husband went to the west coast. The plaintiff left her husband and returned to Steele on September 7, 1953. Shortly thereafter she instituted divorce proceedings which resulted in a decree of divorce on December 18, 1953. The plaintiff gave birth to a daughter on June 21, 1954. Thus far there is no dispute as to the facts. The defendant contends that he is not the father of this child and the plaintiff contends he is. There is no question that the parties resumed sexual intercourse during the latter part of 1953. The dispute is as to when this occurred. The plaintiff testified that intercourse occurred on October 24 and 25. The defendant,, on the other hand, testified that the practice was not resumed until the night of November 21. Medical testimony establishes that if the plaintiff’s testimony is correct the defendant could be the father of the child and that if his testimony is correct he is not the father.

The defendant testified that he did not see and was not with the plaintiff on October 24 and 25; that the first time he was with the plaintiff after she returned from the west coast was on November 7, 1953, when he met her in Bismarck and asked her to ride to Steele with him, which she did. On November 18 he took her dancing and to lunch in Bismarck. On neither of these occasions did intercourse take place. The plaintiff on the other hand testifies that on Saturday night of October 24 the defendant took the plaintiff from Bismarck to Steele where they were joined by a married couple named Thompson who went with them to a dance. They got back to Steele about 3 o’clock the following morning. Mrs. Thompson who is a cousin of the defendant corroborates this testimony. Mr. Thompson was in the military service at the time of trial and did not testify. The plaintiff further testified that after letting the Thompsons out of the car the plaintiff and defendant drove out into th.e country where an act of intercourse took place.

The father and mother of the 'plaintiff both testify that the defendant brought the plaintiff to Steele and stopped at their home on the evening of October 24. All of these witnesses fixed the date as being a Saturday night following the day on which the plaintiff started to work at Buttrey’s store in Bismarck and it is established without dispute that she started to work there on October 19.

The defendant offered no evidence as to his whereabouts on October 24 and 25 other than his own statement that he did not see the plaintiff on October 24 or 25. The trial court found for the plaintiff and determined that the child born ' on June 21, 1954, was the child' of the defendant and decreed that the defendant pay the plaintiff the sum of $40 per month for support and maintenance of the child until she shall have reached the age of eighteen years or until she shall marry. He also awarded judgment for certain costs and hospital bills. From the judgment and decree the dfefendant appeals and demands a trial de novo.

The .defendant testified that the plaintiff told him in January 1954 she was pregnant; that he was responsible for her condition; and that the child was expected to be born late in August. He believed her and relying upon her statements agreed to marry her, which he did on February 25. He now contends that these representations on her part were false with respect to his responsibility for her condition and that as a result thereof his consent to marry her was obtained .by fraud and that he is therefore entitled to have the marriage annulled.

' The plaintiff states that she told him of her condition in December 1953.; that her statement as to his responsibility is-true; and that she told him.the child would' probably be born in July, which was the advice she had received from a doctor. The burden is on the defendant to prove the material allegations of his counterclaim that he was induced by fraud to enter into the marriage. Fraud is never presumed. Rather the presumption is that private transactions have been fair and regular. Section 31 — 1103, NDRC 1943. A marriage may be annulled where consent thereto has been obtained by fraud. Section 14-0401, NDRC 1943. But the fraud relied upon must be clearly shown. Reitsch v. McCarty, 35 N.D. 555, 160 N.W. 694; Emanuel v. Engst, 54 N.D. 141, 208 N.W. 840. In this case in order to establish a fraudulent inducement for the mariage the defendant must show that the child born in wedlock is not his child. All children born in wedlock are presumed to be legitimate. Section 14-0901, NDRC 1943. The burden of proof to be carried by the defendant is heavy and it is not lightened by the fact that defendant freely admits that before marriage and before and after conception he had intercourse with the plaintiff on many occasions while, she was the wife of another. In the trial court’s memorandum opinion prepared before entry of judgment he points out that not only the presumption but the preponderance of the evidence favors the plaintiff’s contentions. We'agree with the trial court'in this respect.

.Judgment was entered on July 8, 1955, and on the following December 5 the defendant moved for a new trial on the ground of newly discovered evidence. In support of the motion the defendant produced affidavits of persons who would testify concerning his whereabouts on October 24 and 25, 1953, when the plaintiff says that he was with her. The most important affidavit among the six affidavits of proposed witnesses submitted in support of the motion is that of Charley Thompson who relates in some detail the whereabouts of the defendant and the affiant during the time in question. The substance of his statements is that he was with the defendant on the two nights of October 24 and 25, 1953, and all day Sunday, October 25, until about 1 o’clock in the morning of October 26 and that the defendant was not in Steele or Bismarck during any of this time. It may be noted that this affiant is not related to the Mrs. Thompson who testified for the plaintiff.

The affidavits of the five other proposed witnesses who are close relatives of the defendant corroborate in part the affidavit of Thompson in that the affiants state that Thompson visited at the farm home of the defendant’s father and mother on October 25 and October 26 and that the defendant and Thompson were at this farm together during various parts of the time in question. In their affidavits the father and mother of the defendant also state that he was at home on October 24 until about 6:30 p. m. when he left with Thompson. The obvious purpose of the proposed newly discovered evidence is to discredit the testimony of the plaintiff and her witnesses as to the occurrences of October 24 and: October 25.

The trial court after reviewing these affidavits in a memorandum opinion entered an order denying the motion. The defendant appeals from this order as well as from the judgment. The trial court did, not feel that diligence was used in procuring the evidence put forwárd in support of the motion and states pointedly, that he1 does not believe the defendant’s testimony.

The rule that a motion, for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court and the appel-" late court will not interfere unless abuse of such discretion is shown is established by a long line of decisions of this court, the most recent of which are Haslam v. Babcock, 72 N.D. 581, 10 N.W.2d 239; Hochstetler v. Graber, 78 N.D. 90, 48 N.W.2d 15; Peterson v. Bober, 79 N.D. 300, 56 N.W.2d 331.

The evidence proffered in ■ support of defendant’s motion would in event of a new trial create a conflict with the evidence supplied by the plaintiff in connection with the crucial dates of October 24 and 25, 1953. When we consider the plaintiff’s evidence, the presumption of legitimacy, and the admitted conduct of the defendant we cannot say that a different result would probably be reached upon con-, sidering the newly discovered evidence. Where newly discovered evidence is such that it does not appear likely to produce a different result on another trial, it is not an abuse of discretion to deny a' motion for a new trial on that ground. Farmers’ State Bank of Cathay v. Jeske, 50 N.D. 813, 197 N.W. 854; McGillivray v. First National Bank of Dickinson, 56 N.D. 174, 217 N.W. 159; Eckstrand v. Johnson, 40 N.D. 294, 168 N.W. 824. We find this rule to be applied in divorce actions in other jurisdictions. Shore v. Shore, 17 N.J.Super. 320, 86 A.2d 23; Hodges v. Hodges, 154 Neb. 178, 47 N.W.2d 361; Gullo v. Gullo, Sup., 67 N.Y.S.2d 568; Reynolds v. Reynolds, 33 App.Div., 625, 53 N.Y.S. 135; Whise v. Whise, 36 Nev. 16, 131 P. 967, 44 L.R.A.,N.S., 689; West v. West, 200 Ga. 115, 35 S.E.2d 914.

The preponderance of the evidence adduced at the trial clearly favors the findings of the trial court and the judgment rendered thereon. The newly discovered evidence, while of considerable weight, is such that we cannot say that it would make a different result' likely or probable. The trial court acted within the bounds of his judicial discretion when he denied defendant’s motion for a new trial. The judgment and order appealed from are affirmed.

BURKE, C. J., and SATHRE, JOHNSON and GRIMSON, JJ.


text:
    Matter of Esther E. KRAMER, a Neglected and Delinquent Minor Under the Age of Eighteen Years. STATE of North Dakota, Plaintiff and Respondent, v. Adolph KRAMER, Defendant and Appellant.
    No. 7562.
    Supreme Court of North Dakota.
    March 22, 1956.

      Aloys Wartner, Jr., Harvey; Cupler, Tenneson, Serkland & Leahy, Fargo, for defendant and appellant.
    Leslie R. Burarum, Attv. G<*n.. Samuel D. Krause, State’s Atty., Fessenden, for plaintiff and respondent.
   JOHNSON, Judge.

The- defendant, Adolph Kramer, appeals from a judgment convicting him of criminal contempt. He was sentenced to imprisonment in the county jail of Wells County, North Dakota, for a period of thirty days and fined $250.

On March 24, 1955, the juvenile commissioner of the district court of the Fourth Judicial District issued a summons upon a petition entitled: “In the matter of Esther E. Kramer, a neglected and delinquent minor”, directed to her and her father and mother, William and Christina Kramer, for a hearing on the petition on April 1, 1955, in the City of Fessenden, North Dakota. The hearing was held pursuant to the summons upon the petition and the juvenile court took full custody of Esther E. Kramer until “she shall have attained * * * twenty-one years.” The court placed her in the temporary custody of the Florence Crittenden Home at Fargo, North Dakota.

The appellant in this court, Adolph Kramer, was not a party to the juvenile proceedings, nor was he served with summons therein. He had no notice thereof. ■

It was within the power of the court under the statute to require his appearance if the court deemed that necessary.

“A summons may be issued requiring the appearance of any other person whose presence, in the opinion of the judge, is necessary.” Section 27-1614, NDRC 1943.

On April 1, 1955, and as a result of the juvenile hearing in this matter, the court issued a “Restraining Order as to Adolph Kramer” in which he was:

“ * * * enjoined and restrained from interviewing, communicating with or talking to the said Esther E. Kramer, or going to the place where she might be confined, either in the Florence Crittenden Home in Fargo, North Dakota, or in any hospital in said city, or at any other place whatsoever, and from entering the premises of the said Florence Crittenden Home during the presence there of the said Esther E. Kramer, or of molesting, annoying, or talking with her in any manner or form, until further order of this court.”

A copy of this order was served upon Adolph Kramer in the City of Fargo, North Dakota, on the 5th day of April, 1955. Adolph Kramer disregarded the order and contacted and communicated with Esther E. Kramer.

On August 24, 1955, the State’s Attorney of Wells County, in an action entitled in the juvenile proceedings against Esther E. Kramer in the name of the “State of North Dakota, plaintiff, v. Adolph Kramer, defendant”, made a complaint setting forth facts of alleged violations by Adolph Kramer of the court’s restraining order and directing twenty-eight interrogatories to him. He refused to answer the interrogatories. The Honorable H. E. Rittgers, Judge of the District Court of the Fourth Judicial District, had, the previous day, issued a warrant of attachment directed to the sheriff of Wells County, North Dakota, to apprehend Adolph Kramer and bring him before the court on the 24th day of August 1955, at 10:00 a. m., in the courthouse in the City of Fessenden, Wells County, North Dakota. Adolph Kramer was taken into custody by virtue of the warrant of attachment and appeared before the court on the 24th of August 1955. He requested a continuance of the hearing to September 13, 1955 at 10:00 a. m. Before the court would consider the granting of his request or motion, it asked him to enter a plea to the warrant of attachment. He entered a plea of not guilty and was released on bond. On September 13, 1955, the defendant appeared and moved to quash the warrant and dismiss the complaint on two grounds:

“1. The complaint and affidavit in this action and the original files and records in the matter of Esther E. Kramer, a neglected and delinquent minor under the age of eighteen years, affirmatively shows that the Court did not obtain jurisdiction over the person of the defendant, and any order issued in the matter of Esther E. Kramer as against Adolph Kramer is therefore void and of no force and effect.
“2. That the moving papers do not state a cause of action for civil contempt against this defendant.”

The defendant was found guilty and judgment was entered. He specifies as errors the court’s refusal to dismiss the complaint and to grant the motion quashing the warrant of attachment, assuming jurisdiction over his person, and finding and adjudging him guilty of contempt.

While Section 27-1008, NDRC 1943, provides :

“ * * * If an attachment is issued pursuant to section 27-1007, it shall be deemed an original special proceeding by the state as plaintiff against the accused as defendant”;

it has been held that it is not wholly an independent proceeding.

“While, as appellant contends, a criminal contempt proceedings wherein a warrant of attachment is issued is an original special proceeding under the provisions of section 7555, Rev.Codes 1905, [Row Section 27-1008, NDRC 1943], it cannot be correctly said to be wholly an independent proceeding, as it grows out of and is, to a certain extent, connected with the proceedings in the main action. It is-only by .virtue of the proceedings in the main action that this special proceeding can originate. It is dependent for its foundation upon the proceedings in the main action and the violation of the injunc-tional order therein issued. The essence of the contempt consists in the violation of the mandate of the judgment in the main action.” State v. Heiser, 20 N.D. 357, 364, 127 N.W. 72, 75.

The validity of the conviction for criminal contempt in this action, therefore,' is dependent not merely upon the hearing held in the contempt proceedings, but upon the right and power of the court to issue a restraining order in the juvenile proceedings concerning Esther E. Kramer, to which the defendant and appellant was not a party, nor served with any process, so as to bind him to obedience to its mandates.

“Acts Punishable as Criminal Con-tempts by Courts of Record. A court of record of this state may punish as for a criminal contempt any person guilty of any: * * *
“3. Willful disobedience of any process or order lawfully issued or made by it;
“4. Resistance willfully offered to the lawful order or process of the court; * * *.” (Emphasis supplied.) Section 27-1001, NDRC 1943.

The question here presented is whether or not the court in the juvenile proceedings had jurisdiction to issue a restraining order affecting the rights of Adolph Kramer. He contends that the order was void. If the court had no jurisdiction over the person of Adolph Kramer, the issuance of the restraining order, insofar as it attempted to bind him or restrict his actions, was a nullity arid void. The rule may be said to be firmly established that a court does not possess the right or power to punish as for contempt a disregard or violation of its order or decree which it has rendered without jurisdiction over the subject matter or the parties. Lack of such jurisdiction or power may, therefore, be raised by the person charged with contempt for violation of the order or decree in a collateral proceedings on appeal from the judgment of conviction for contempt. Forman v. Healey, 11 N.D. 563, 93 N.W. 866; State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1 Ann.Cas. 650; Kelsch v. Dickson, 71 N.D. 430, 1 N.W.2d 347; Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 559, 12 A.L.R.2d 1051. In this last case the court said:

“The failure of a party to obey an order that is void for want of authority in the court to issue it is not punishable as a contempt. Forman v. Healey, [supra], State ex rel. Register v. McGahey, [supra] ; 12 Am.Juris, Contempt, Sec. 24; 17 C.J.S., Contempt, § 14.”

Appeal from conviction of criminal or civil contempt is provided by statute. Section 27-1024, NDRC 1943.

We must next determine whether the restraining order involved here was void or merely erroneous. The rule stated does not apply in a case where the court has jurisdiction of the subject matter and the parties but has issued an erroneous order. Hodous v. Hodous, supra. In order to punish for contempt the court must have jurisdiction over the subject matter and the parties. In the case at bar the court had jurisdiction of the subject matter in the juvenile hearing, but it did not have jurisdiction over the person of Adolph Kramer in that hearing. Disobedience of a court order, entered without an opportunity for hearing, does not constitute contempt, since such order has no validity whatsoever. 17 CJ.S., Contempt, § 14, p. 21; Ex parte Irwin, 320 Mo. 20, 6 S.W.2d 597. Judicial proceedings are not valid unless they accord the parties thereto due-process of law. Judgment can be lawfully rendered only after hearing and trial. All judicial proceedings without such hearing are invalid and without binding force and effect. Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215. In Ex parte Irwin, supra [320 Mo. 20, 6 S.W.2d 600], the court said:

“Unless the order of the Cole County circuit court here under review was entered after according to petitioners their day in court and an opportunity to be heard in the manner and under the safeguards -laid down in the state and Federal Constitutions, such order had no validity and petitioners could not lawfully be adjudged in contempt of court after disobeying such order.”

The fact that a person charged with contempt for violation of an order was'not a party to the proceedings in which the order was issued has been regarded as a ground for absolving him of the charge of contempt on the ground that as to such person the order was void for lack of jurisdiction or power in the court. Ex parte Widber, 91 Cal. 367, 27 P. 733; People ex rel. Pomeranz v. District Court, 74 Colo. 58, 218 P. 742; McKinney v. Frankfort & State Line R., Co., 140 Ind. 95, 38 N.E. 170, 39 N.E. 500; In re Reese, C.C., 98 F. 984, affirmed 8 Cir., 107 F. 942; White v. County Court, 99 W.Va. 504, 129 S.E. 401. For other cases see Annotation — Contempt— Disobeying Invalid Decree, Sections 19 and 20, 12 A.L.R.2d pages 1090 and 1092.

The appellant in the proceedings here involved had no opportunity to present any evidence in the juvenile proceedings. He was not a party thereto, nor served with process therein. The restraining order deprived him of some of his personal liberty. Since the court had no jurisdiction over the person of Adolph Kramer, it could not in this manner deprive him of some of his personal liberty. The restraining order was void. The court, therefore, was without power or authority to find the appellant guilty of contempt.- The judgment is reversed.

BURKE; C. J., and GRIMSON, MORRIS, and SATHRE, JJ., concur.