Bomford v. Socony Mobil Oil Co.

• Decision Date: 09 April 1968
• Docket Number: No. 4828,No. 40869,4828,40869
• Citation: 1968 OK 43,440 P.2d 713
• Parties: Wright BOMFORD, Audrey S. Bomford, Tom Bomford, Dan German, and Dan German, Executor of the Estate of Dee German, Deceased, Plaintiffs in Error, v. SOCONY MOBIL OIL CO., Inc., a New York Corporation, Major Royalty Corporation, a corporation, R. B. Eavans, Marie Evelyn Eavans, Guy Looper, Lena A. Looper, F. L. Finley, R. J. Dollar, Paul A. Tucker, and the Unknown Heirs, and Heirs, Administrators, Executors, Legatees, Davisees, Trustees and Assigns, immediate and remote, of Sampson Joe, Deceased, Choctaw Roll, and The Unknown Claimants to the lands involved herein, the Heirs, Executors, Administrators, Legatees, Devisees, Trustees and Assigns, immediate and remote, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 713

440 P.2d 713

1968 OK 43

Wright BOMFORD, Audrey S. Bomford, Tom Bomford, Dan German and Dan German, Executor of the Estate of Dee German, Deceased, Plaintiffs in Error, v. SOCONY MOBIL OIL CO., Inc., a New York Corporation, Major Royalty Corporation, a corporation, R. B. Eavans, Marie Evelyn Eavans, Guy Looper, Lena A. Looper, F. L. Finley, R J. Dollar, Paul A. Tucker, and the Unknown Heirs, and Heirs Administrators, Executors, Legatees, Davisees, Trustees and Assigns, immediate and remote, of Sampson Joe, Deceased Choctaw Roll No. 4828, and The Unknown Claimants to the lands involved herein, the Heirs, Executors, Administrators, Legatees, Devisees, Trustees and Assigns, immediate and remote, Defendants in Error.

No. 40869.

Supreme Court of Oklahoma.

April 9, 1968.

Syllabus by the Court

1. Where the affidavit for publication service upon defendants in quiet title action showed action to be of a class of cases in which statute permits publication service, and that plaintiff with due diligence is unable to secure service upon defendants within the state otherwise than by publication, and the journal entry discloses trial court's examination of files and finding that publication service was proper, the judgment rendered against defendants in such case was not void on its face.

2. A notice published three times in intervals of one week between each successive publication meets the requirements of 12 O.S.1961, § 173, even though the period between the initial and the last publication is less than 21 days.

3. The requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby, and where the names and addresses of adverse parties are known or are easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or Art. 2, Sec. 7 of the Oklahoma Constitution.

4. Due diligence in ascertaining the whereabouts of defendants served by publication is established when the facts before the court have a legal tendency to show that a diligent search has been made, and the court is satisfied that primary sources at hand, such as local tax rolls, deed records, judicial records and other official records, as well as available secondary sources, such as a telephone directory, a city directory, or the like, have been exhausted in a meaningful pursuit of information.

5. The probative facts of due diligence required by 12 O.S.Supp.1965, § 171, need not be set forth in the affidavit or in a verified pleading but they must be adduced by proof presented at the hearing to be conducted before judgment on service by publication is rendered; this procedural modification of existing decisional law shall not affect the validity of judgments rendered before this opinion becomes final.

Appeal from the District Court of Latimer County; George Windham, Judge.

Action to establish interest in mineral estate in which plaintiffs sought to avoid the bar of prior decree quieting title thereto in grantee of a certificate tax deed. Trial court entered judgment for defendants and plaintiffs appeal. Affirmed.

W. F. Semple, Tulsa, for plaintiffs in error.

Carloss Wadlington, Ada, for defendants in error.

McINERNEY, Justice.

This case turns on the validity of a prior quiet-title decree interposed as a bar to the present action. The decree is challenged for fatal defects in the publication process on which it is rested. At issue below was plaintiffs' title to a mineral estate underlying land situated in Latimer County. Their appeal is from an adverse judgment of the trial court.

Plaintiffs deraign their title to the minerals through mesne conveyances from a Choctaw allottee. The last muniment of title vested in them in 1923. Defendants are purchasers of a mineral estate from one who had acquired it in April 1959, from a grantee in fee of a certificate tax deed of Nov. 5, 1958. The tax deed grantee's title to the fee was quieted in him, as against all holders of record title, by decree of the District Court of Latimer County rendered on Jan. 24, 1959. In that action service upon the defendants was effected solely by publication. The present action to cancel mineral deeds of record and quiet title to the mineral estate was commenced over three years after the rendition of the 1959 judgment.

Urging error in the trial court's failure to quiet their asserted title, plaintiffs argue that both the tax deed and the 1959 quiet-title decree were void on the face of the record and hence subject to collateral attack at any time. 12 O.S.1961, § 1038.

We need not pause here to inquire into the validity of the proceedings preceding the issuance of the certificate tax deed. This is admittedly a collateral attack on the 1959 decree. Our inquiry into its validity may not extend beyond an examination of the judgment roll in the action. Collingsworth et al. v. Hutchison, 185 Okl. 101, 90 P.2d 416, 418; Lind v. Goble, 117 Okl. 195, 246 P. 472, 475. Unless the record affirmatively discloses want of jurisdiction, every fact not negatived on the face of the judgment roll must be presumed to support a judgment of a court of general jurisdiction. Yahola Oil Company v. Causey, 181 Okl. 129, 72 P.2d 817, 819; Weimer v. Augustana Pension and Aid Fund, 179 Okl. 572, 67 P.2d 436, 438. The challenged proceedings which culminated in the issuance of the 1958 tax deed do not appear on the face of the judgment roll in the 1959 quiet title action. We cannot here consider their validity. Moreover, it is not the tax deed but the 1959 quiet-title decree that was interposed in the trial court as a bar to the present suit.

Examining the 1959 judgment roll in the light of our past decisions, we are constrained to hold that neither of the asserted defects in the publication process, discussed later, can operate to render the 1959 quiet-title decree void on the face of the record proper.

The publication affidavit in the 1959 quiet-title action names everyone who then held record title to the affected land. It describes land identical to that conveyed by the certificate tax deed and plainly states that a) the action being prosecuted is one to quiet title; b) the action is one in which publication service is authorized; c) plaintiff (tax deed grantee) does not know and with due diligence and upon diligent inquiry cannot ascertain defendants' addresses, residences or places of business; and d) plaintiff, with due diligence, is unable to effect service of summons upon the defendants within the State of Oklahoma.

Plaintiffs urge the affidavit does not meet the statutory requirements because it fails to state with particularity why the named defendants could not be served personally within the state.

Publication process made pursuant to the authority of Secs. 5612 and 5613, C.L.1909, was deemed fatally defective when based on an affidavit which did not state facts showing the diligence used in order to serve the defendant within the state. The provisions of the cited statutes were amended in 1911 by the adoption of Sec. 4722, R.L.1910. See H.B. 562, S.L.1910--1911, p. 70. That section, as amended by subsequent enactments, is now designated as 12 O.S.1961, § 170. As indicated by the revisers' note which appears beneath the text, the object of the 1911 amendment was to make '(p)laintiff's statement of due diligence * * * sufficient for publication, instead of leaving it to conjecture as to just what showing of diligence is necessary.' See, Vol. II, R.L.1910, p. 1222. In conformity with the revisers' intent, our decisions subsequent to the enactment of Sec. 4722 hold that a publication affidavit meets statutory requirements when it alleges substantially in the words of that section and of Sec. 4723, R.L.1910, that 'the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the State.' The quoted words reappear in identical form in all subsequent amendments, but were slightly and insignificantly changed by S.B. 181, S.L.1957, p. 78.

Our construction so placed on Secs. 4722 and 4723 dispensed with the necessity of setting forth in the pre-publication affidavit any probative or evidentiary acts of due diligence used in an effort to serve the defendant personally within the state. Keisel v. Reynolds, 125 Okl. 295, 244 P. 1104, 1106; Texas-Omar Gasoline & Oil Co. v. North American Car Co., 120 Okl. 57, 251 P. 1010; annotation in 21 A.L.R.2d 929, 971; Brown, Default Judgments in Quiet Title Actions, 14 Okl.L.R. 491, 499, 500. Feagin v. Davidson, Okl., 431 P.2d 396, 400, serves as the most recent reiteration of this view.

While our time-honored construction of Secs. 4722 and 4723 is in perfect harmony with the intent of the 1910 revision and the pre-1953 amendatory acts which followed, it may now appear somewhat questionable when considered in the light of the added language in the 1953 amendment to 12 O.S.1951, § 171. H.B. 776, S.L.1953, pgs. 49, 50, 12 O.S.Supp.1953, § 171. That amendment, which authorized the use of a verified petition or pleading along with a pre-publication affidavit, provides in the last sentence of the first grammatical paragraph of the section, that 'allegations and facts' of due diligence shall be stated 'either in the verified petition or pleading filed in said case, or in a separate affidavit filed therein' before the 'party may proceed to make service by publication.' Post-1953 acts further amending Sec. 171, supra, embody language identical to that which is italicized. See S.B. 182, S.L.1957, p. 80, 12 O.S.Supp.1957, § 171, and H.B. 807, S.L.1965, p. 925, 12 O.S.Supp.1965, § 171. The effect of the 1953 amendment has not been specifically urged in any of the cases brought here since its enactment. While its...