This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1369

Rafiq Zareef Muhaymin,

Appellant,

vs.

Jeff Jindra, et al.,

Respondents.

Filed March 9, 1999

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 9721684

Rafiq Zareef Muhaymin, Reg. No. 6746-041, Federal Correctional Institution, P.O. Box 1000, Oxford, Wisconsin 53952 (pro se appellant)

City of Brooklyn Park, 5200 85th Avenue North, Brooklyn Park, MN 55443 (respondents)

Considered and decided by Crippen, Presiding Judge, Halbrooks, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant contends the trial court erred when it concluded it lacked personal jurisdiction over the respondents in a suit for recovery of personal property. We affirm.

FACTS

Appellant sent papers to Hennepin County District Court, requesting the return of property in the possession of the Brooklyn Park Police Department and its suppression as evidence, alleging under Minn. Stat. § 626.21 (1998) that the property had been illegally seized. He also asserted that Detective Jeff Jindra had maliciously procured and executed the warrant under which the items were taken. Some of the seized items were used against appellant in a federal prosecution, but there was no pending or ongoing criminal proceeding against him at the time he attempted to initiate his property-recovery suit. See United States v. Mosby,1 101 F.3d 1278, 1281 (8th Cir. 1996).

The trial court concluded the following:

That the Court lacks jurisdiction over this matter. In reviewing the record, it does not appear that defendants have been served as required by Minn. R. Civ. P. 3.01(a) which states in relevant part that, "a civil action is commenced against each defendant: (a) when the summons is served upon that defendant."

D E C I S I O N

We review a trial court's jurisdiction determinations de novo. See Naegele Outdoor Adver., Inc. v. Minneapolis Community Dev. Agency, 551 N.W.2d 235, 236 (Minn. App. 1996) (subject matter jurisdiction is legal conclusion); Scott v. Scott, 492 N.W.2d 831, 833 (Minn. App. 1992) (not bound by trial court's ultimate legal conclusions regarding personal jurisdiction). Statutory interpretation is also a question of law we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

Appellant alleged that he was entitled to return of the property under Minn. Stat. § 626.21. But this statute permits only a motion proceeding that is auxiliary to a pending or ongoing proceeding. See Minn. Stat. § 626.21 (stating that "[t]he motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing"). Aside from appellant's failure to serve respondents, therefore, the court lacked jurisdiction to hear the motion because there was no pending or ongoing proceeding. It also did not have jurisdiction over appellant's "malicious procurement of a warrant" charge, because the allegation is a misdemeanor, which the City Attorney's office, not appellant, is authorized to prosecute. Minn. Stat. § 626.22 (1998) (malicious procurement of warrant a misdemeanor); Minn. Stat. § 487.25, subd. 10 (1998) (city prosecutes misdemeanors).

With his pleadings and arguments, appellant has stated what is tantamount to a civil action for the recovery of personal property. As the trial court correctly noted, however, a civil action does not commence, and the court does not acquire jurisdiction, where the defendants have not been served.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.

[1] Appellant was formerly known as Ivory Mosby.