Johnson v. North Star Lumber Co.

• Decision Date: 14 July 1913
• Docket Number: 2,234.
• Parties: JOHNSON v. NORTH STAR LUMBER CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F. 624

JOHNSON v. NORTH STAR LUMBER CO. et al.

No. 2,234.

United States Court of Appeals, Ninth Circuit.

July 14, 1913

Morgan & Brewer, of Hoquiam, Wash., and John Van Zante, of Portland Or., for appellant.

James N. Davis and Veazie & Veazie, all of Portland, Or., for respondents.

This is a suit brought in the United States Circuit Court for the District of Oregon by the North Star Lumber Company, a Minnesota corporation, against John W. Johnson and two others, all citizens of the state of Washington. The action is to quiet title to certain lands described as the northwest quarter of section 10, township 21 south, range 7 west of the Willamette meridian, situate in Douglas county, state of Oregon. None of the parties to the action are citizens of the state of Oregon. The land in controversy is vacant, unoccupied timber land, not in the possession of either party to the action or any other person. The appellant alone appeared, filed an answer and cross-bill, and defended the action; the other two defendants defaulting.

The tract of land in controversy was originally a part of the public domain. It was conveyed to Aaron Johnson by the United States by patent dated September 10, 1906. The patent was preceded by a sale of the land to Aaron Johnson by the United States under the provisions of the act of Congress of June 3 1878, entitled 'An act for the sale of timber lands in the states of California, Oregon, Nevada and Washington Territory. ' The sale was evidenced by a certificate of sale dated February 18, 1902. While holding this certificate of sale from the United States, Aaron Johnson conveyed the land to one Andrew Johnson by deed dated May 21, 1904, recorded June 7, 1904. The title to the land acquired by purchase and patent remained in Andrew Johnson until by a deed dated April 8, 1907, delivered April 12, 1907, and recorded April 24, 1907, it passed to Aaron Johnson. The latter, by deed dated February 21, 1907, acknowledged March 8, 1907, delivered April 12, 1907, and recorded April 24, 1907, conveyed the land to the plaintiff. The deed from Andrew Johnson to Aaron Johnson was delivered on April 12, 1907, and on the same date Aaron Johnson delivered his deed to the plaintiff, and both deeds were recorded on the same day. Pending these proceedings, and on April 1, 1907, the defendant John W. Johnson commenced an attachment suit in the circuit court of the state of Oregon for Douglas county against Aaron Johnson and Eline Engebritson, and caused the land in controversy, then standing of record in the name of Andrew Johnson, to be attached in said action and on said day as the property of the two defendants therein named. It is not claimed that the defendant Eline Engebritson ever had any interest in the land in dispute. We have, therefore, no further concern in the relation of this defendant to the case. Andrew Johnson was not a party to the attachment suit.

In the attachment suit the plaintiff, on the 7th day of September, 1907, made an affidavit, subscribed and sworn to before one Charles W. Hodgdon, a notary public for Washington, residing at Hoquiam, Wash., in which the plaintiff undertook to allege certain facts concerning the residence of the defendant as the basis for an order of the court directing publication of the summons in the case. The statute of Oregon in force at this time respecting affidavits was contained in section 819 of Bellinger & Cotton's Annotated Codes and Statutes of Oregon, as follows: 'An affidavit or deposition taken in another state of the United States or a territory thereof, the District of Columbia, or in a foreign country, otherwise than upon commission, must be authenticated as follows, before it can be used in this state: (1) It must be certified by a commissioner, appointed by the Governor of this state, to take affidavits and depositions in such other state, territory, district, or country; or (2) it must be certified by a judge of a court having a clerk and a seal to have been taken and subscribed before him at a time and place therein specified, and the existence of the court, the fact that such judge is a member thereof, and the genuineness of his signature shall be certified by the clerk of the court, under the seal thereof. ' Charles W. Hodgdon, the notary public in the state of Washington before whom plaintiff's affidavit was taken, was not a commissioner appointed by the Governor of the state of Oregon to take affidavits in the state of Washington, nor was he otherwise qualified to take plaintiff's affidavit for use in the state of Oregon. Upon this affidavit of the plaintiff an order of publication was made by the court; but no publication was then made.

On October 11, 1907, the plaintiff's attorney made and filed an affidavit with the court, alleging that by inadvertence he had neglected and omitted to have the summons published, and that the summons had not been published; that letters addressed to the defendant at Hoquiam, Wash., had been returned unopened and uncalled for; that the address of either of the defendants was unknown to the plaintiff and could not be ascertained with reasonable diligence; that due and strict inquiry had been made to ascertain such addresses from former friends of said defendants living at Hoquiam, Wash., by the plaintiff and his attorneys at Hoquiam, Wash., and that no one could be found who knew their addresses. An affidavit of one Evelyn Johnson, dated September 10, 1907, was also filed, in which it was alleged that on the 10th day of September, 1907, at Roseburg, Or., affiant deposited in the United States post office, inclosed in an envelope securely sealed and with the postage fully prepaid, a copy of the complaint and summons, directed to be published in the action, duly certified to be such by the attorney for the plaintiff, plainly addressed to the defendant, Aaron Johnson, at Hoquiam, Wash.

Upon these affidavits the court, on October 11, 1907, made a second order of publication, reciting that, 'it appearing to the satisfaction of the court that neither of the defendants above named' (Aaron Johnson and Eline Engebritson) 'can be found within the state of Oregon, and that a cause of action exists against both of said defendants, and that both of said defendants are proper parties to the above-entitled action; and it appearing to the satisfaction of the court that the post office address of neither of the defendants is known and cannot be found with reasonable diligence, it is ordered,' etc.

The law of Oregon relating to publication of summons is contained in section 56, Lord's Oregon Laws, and in section 56, Bellinger & Cotton's Annotated Codes and Statutes of Oregon, as follows: 'When service of the summons cannot be made as prescribed in the last preceding section' (personal service in this case), 'and the defendant after due diligence cannot be found within the state, and when that fact appears by affidavit to the satisfaction of the court or judge thereof, * * * or justice of the peace in an action in a justice's court, and it also appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this state, the court or judge thereof * * * shall grant an order that the service be made by publication of a summons in either of the following cases: * * * (3) When the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.'

Neither of the defendants appeared in the action, and a default judgment was entered on May 16, 1908, in which the land attached on April 1, 1907, was ordered to be sold to pay the judgment, amounting to the sum of $315, with interest at 8 per cent. per annum from May 16, 1908, the further sum of $30 attorney's fees, all in gold coin of the United States of America, and plaintiff's costs and disbursements, taxed at $14.50, and that execution issue to enforce the judgment. The land was sold to the plaintiff, John W. Johnson, for the sum of $380.04, and the sale was subsequently confirmed by the court. Thereafter, no redemption having been made of the premises, the sheriff of Douglas county, Or., delivered to John W. Johnson, the plaintiff and judgment creditor, the deed for the land described in the complaint and order of sale in that cause. It is under this deed that the defendant claims title to the land in controversy in this case.

In the present suit by stipulation of the parties the records and files of the Circuit Court of the state of Oregon in the attachment suit were introduced in evidence as the evidence of the defendant's title to the land in controversy. Upon the conclusion of the evidence, the court below directed a decree to be entered in favor of the plaintiff the North Star Lumber Company, and against the defendant, John W. Johnson, the court holding that the judgment in the attachment suit under which the defendant claimed title to the land was void; that the affidavit upon which the order of publication of summons was made in the attachment suit was not authenticated as required by law, and was, therefore, a nullity, and the order of publication of the summons based thereon was ineffective for any purpose.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

MORROW Circuit Judge (after stating the facts as above).

1. In Oregon, a person claiming an interest or estate in real property, not in the possession of another, may maintain a suit in equity to remove the cloud or to quiet title, without being in actual possession of the premises. Section 516 Lord's Oregon Laws; McLeod v. Lloyd, 43 Or. 260, 272, 71 P. 795, 74 P. 491; Holland v. Challen, 110 U.S. 15, 17, 3 Sup.Ct. 495, 28 L.Ed. 52. In such a suit, where a...