Ervin v. Milne

• Decision Date: 17 February 1896
• Parties: ERVIN v. MILNE et al.
• Court: Montana Supreme Court

43 P. 706

17 Mont. 494

ERVIN v. MILNE et al.

Supreme Court of Montana.

February 17, 1896

Appeal from district court, Silver Bow county; William O. Speer Judge.

Action by Arthur K. Ervin against James R. Milne and others, to foreclose a mortgage, in which there was a judgment and decree of foreclosure, and a sale of the property to plaintiff, who afterwards obtained a sheriff's deed. From a judgment denying a motion for a writ of assistance to enable him to obtain possession of the premises purchased plaintiff appeals. Reversed.

Plaintiff appeals from an order of the district court refusing to issue, at his request, a writ of assistance for the recovery of certain real estate in the possession of one of the defendants, Sarah Milne. It appears from the record that this action was originally commenced by the plaintiff against James R. Milne and Sarah, his wife, and the Miners Lumber Company, a corporation. The action was to foreclose a mortgage upon the real estate owned by said James R. Milne. Sarah Milne and the lumber company defaulted after personal service of summons. The only service obtained upon James R Milne was by the publication of summons. After judgment, execution was issued, and the sheriff sold the real estate to satisfy the judgment of foreclosure. The time for redemption having expired, the sheriff executed and delivered to the plaintiff herein, who was the purchaser at the sale, a deed of the premises. Afterwards, plaintiff presented this deed to the defendant Sarah Milne, who was in possession, and who refused plaintiff possession. Thereupon plaintiff moved the court for a writ of assistance to enable him to obtain possession of the premises. Upon the hearing of the motion, the plaintiff introduced in evidence the judgment roll in the case. The only appearance made by defendants upon the motion was that of Sarah Milne, by her counsel. He offered in evidence the deed conveying the premises to James R. Milne. He also introduced in evidence an affidavit of Frank E. Shaw, and of Sarah Milne. These affidavits, however, are not considered in the opinion below, and need not be described. The defendant Sarah Milne, by her counsel, also introduced in evidence the affidavit for the publication of summons, and also an order made by the judge for said publication. The affidavit for publication is as follows: " [Title of court and cause.] Affidavit for Publication of Summons. State of Montana, County of Silver Bow-ss.: James M. Self, being duly sworn, says: That he is one of the counsel for the above-named plaintiff. That the complaint in the above-entitled action was duly filed with the clerk of this court on the 7th day of December, 1891, and the summons was duly issued out of this court, and placed in the hands of the sheriff of Silver Bow county, Montana, with directions to serve the same upon said defendant James R. Milne, and the sheriff of said county has returned the same to the clerk of this court, with his return thereon indorsed, to the effect that the said defendant James R. Milne could not, after due and diligent search therefor, be found in the county of Silver Bow, Montana. That the last known place of residence of said defendant James R. Milne was at No. 407 West Copper street, Butte City, Silver Bow county, state of Montana, but now said defendant James R. Milne has departed from the state, and does not now reside in the state of Montana, but at what particular place deponent does not know, and has not been able after diligent inquiry to ascertain. That there is good cause of action against said defendant. J. R. Milne and in favor of said plaintiff, Arthur K. Ervin, as will fully appear by my verified complaint filed herein, to which reference is hereby made, and that said defendant J. R. Milne is a necessary and proper party defendant to this action. Since personal service of said summons cannot be made on said defendant J. R. Milne, I therefore ask that the clerk of this court cause the service of the same to be made by publication. [Duly signed and sworn to by J. M. Self.] Filed Dec. 18, 1891." Plaintiff objected to the consideration of the affidavit and order, for the reason that they constituted no part of the judgment roll. This objection was overruled. Upon this showing, the court denied a writ of assistance. From this order the appeal is taken by plaintiff.

Robinson & Stapleton and Dan'l Yancy, for appellant.

Forbis & Forbis, for respondents.

DE WITT, J. (after stating the facts).

The statute, in so far as it concerns the affidavit and order for publication which was in force at the time of the publication of this summons, is as follows: " When the person on whom the service of a summons is to be made resides out of the territory or has departed from the territory or cannot after due diligence, be found within the territory, or conceals himself to avoid the service of the summons, or when the defendant is a foreign corporation, or corporations having no managing or business agent, cashier, secretary or other officer within the territory, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought and such affidavit also states that a cause of action exists against the defendant in respect to whom the service of the summons is to be made and that he or it is a necessary or proper party to the action, the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof." Code Civ. Proc. 1887, § 73. Upon the hearing it was contended, and was so held by the court, that the affidavit was insufficient. Counsel for defendant Sarah Milne makes the same contention in this court. He urges that the cases of Alderson v. Marshall, 7 Mont. 288, 16 P. 576, Palmer v. McMaster, 8 Mont. 186, 19 P. 585, and Id., 13 Mont. 184, 33 P. 132, conclusively sustain his position. If the statute applicable to the present case were the same as that which was passed upon in the above cases cited, those cases, we are of opinion, would be authority for the decision of the district court in this case. But it is to be observed that in all three of the Montana cases cited the decision was upon the statute of March 1, 1883 (Acts 13th Sess. p. 50). The act of 1883 was similar to that of 1887 quoted above, except that it provided that " the judge of the court in which the action is commenced, or the clerk of said court, in the absence of the judge, shall cause service of summons to be made by publication thereof," whereas the statute of 1887 provides, simply, " the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof." The change made in 1887 consisted in allowing the publication of summons to be made simply by the clerk, when the facts were shown as described in the early part of the section, whereas under the law of 1883 the publication must be caused by the judge, if he were present. Upon the trials of the three Montana cases cited, judgments were sought to be introduced in evidence, which judgments had been rendered by the publication of summons, which publication was made during the existence of the law of 1883. In the case at bar, plaintiff sought to prove a judgment rendered upon publication of summons made under the law of 1887. It is true that in the case at bar an order for the publication of summons was made by the judge; but this was an act wholly superfluous. Palmer v. McMaster, 8 Mont. 193, 19 P. 585. If the proper affidavit were made, the clerk could cause the publication, and the intervention of the judge was unnecessary. The proof of the publication of summons was duly made by the affidavit of the foreman of the newspaper in which the...