Felts v. Boyer

Decision Date10 November 1914
Citation73 Or. 83,144 P. 420
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Action by George F. Felts against James D. Boyer and wife. From an order denying an application to vacate a decree entered by default, and to permit W. F. Thomas to be substituted as defendant, with permission to answer, defendants appeal. Reversed, with directions.

O. P. Coshow, of Roseburg, for appellants. E. B. Hermann of Roseburg (C. L. Hamilton, of Roseburg, on the brief), for respondent.


The error assigned consists of the trial court's refusal to vacate a decree and to permit the intervener, W. F. Thomas to be substituted as defendant, with permission to answer. In December, 1911, plaintiff initiated a suit against defendants in the circuit court for Douglas county, wherein he purposed to quiet title to the N.W. 1/4 of section 22, township 29 S range 8 W. Thereafter summonses were placed for service with the sheriff of the county, who made return that, after diligent search and inquiry, he had been unable to find defendants within the county. Afterwards plaintiff subscribed to and filed an affidavit for publication of the summons. On November 27th the circuit court made an order for service of summons by publication. Subsequently summons was published in the manner and form prescribed by law. Defendants failing to appear, judgment by default was entered on December 23, 1912. In May, 1913, Mr. Thomas obtained from defendants a deed to the premises. The motion to annul the decree was submitted in September following, and is supported by the affidavit of Mr Thomas, affirming that neither of defendants had any knowledge or notice that the suit was pending until after the decree had been entered, and that the service of summons was made by publication, "without a copy of the summons or the complaint being mailed to the defendants, or either of them." Attached to the motion is an answer, alleging many imperfections in plaintiff's title by reason of the sale of the premises under proceedings relative to delinquent taxes.

The first conflict of legal opinion arises over the meaning of the word "representatives," as used in section 59, L. O. L.; counsel for plaintiff contending that the interposer of the motion, W. F. Thomas, is a stranger to the record, and therefore not in a position to enlist the aid of section 59, supra, which says:

"The defendant against whom publication is ordered, or his representatives, may * * * upon good cause shown, and upon such terms as may be proper, be allowed to defend after judgment, and within one year after the entry of such judgment on such terms as may be just."

With much force and plausibility counsel supporting the motion argues that the word "representatives," within the meaning of the statute, includes successor in interest. Probably the ordinary meaning of the word "representatives" is limited in its application to executors and administrators; however, this is not the only meaning of the term. For it must be said that general expressions in law must be construed to have a general application, unless there be a clear indication that they were intended to be used in a restricted sense. Our opinion is that the word "representatives," as disclosed by the statute, was intended by the Legislature to designate, not only the executor or administrator of a deceased person, but also the person who has succeeded to the right of the deceased, whether by purchase or descent, or by operation of law. To hold that the defendant, or in case of death his executor or administrator, could alone move to defend after judgment, would leave a purchaser of the property from a grantor, who subsequently died, without a remedy. Courts are ever covetous to relieve against judgments or decrees by default whenever a meritorious showing is made; therefore to declare that relief is available to the grantee defaulting, and not to his successor in interest, would be fastening a construction on the statute not intended by the lawgivers and one fraught with biased consequences.

We think Mr. Thomas had a legal right equivalent with the defendants to enter the door of equity and apply for the redress which he seeks. Words and Phrases, vol. 5, 4073; Magemau & Co. v. Bell, 13 Neb. 247, 13 N.W. 277; Grand Gulf R. & B. Co. v. Bryan, 16 Miss. (8 Smedes & M.) 234; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Merchants' Nat. Bank v. Abernathy, 32 Mo.App. 211; Hogan v. Page, 69 U.S. (2 Wall.) 605, 17 L.Ed. 854; Malone v. Big Flat Gravel Min. Co., 93 Cal. 384, 28 P. 1063; Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 29 L.Ed. 997. The word "judgment," used in the section of the statute to which advertence has been made, was heretofore by this court construed to include decrees. Waymire v. Shipley, 52 Or. 464, 97 P. 807. The expression "personal representatives" and the word "representatives," occurring in the section of the statute having our attention, are to be understood as referring to a like status. Words and Phrases, vol. 5, 4070.

We come now to a consideration of the crux of the controversy; that is, whether the court acquired jurisdiction to render a decree in the original proceeding. This necessitates our inspection of the record. The affidavit filed in support of the motion for "leave to answer" recites that the defendants had no knowledge nor notice of the suit until after the decree was entered, and that the service of summons was made by publication, "without a copy of the summons and complaint being mailed to the defendants, or either of them." With regard to the service of summons by publication, section 57, L. O. L., says:

"In case of publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the defendant at his place of residence, unless it shall appear that such residence is neither known to the party making the application nor can with reasonable diligence be ascertained by him."

We read in section 56, L. O. L., that:

"When service of the summons cannot be made as prescribed in the last preceding section [personal service], 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, * * * the court * * * shall grant an order that the service be made by publication of a summons."

The postulate to be deduced from these statutory provisions is: (1) Proof of the exercise of due diligence to locate defendant within the state; (2) the appearance of that fact by affidavit to the satisfaction of the court; (3) deposit of a copy of the summons and complaint in the post office, directed to the defendant at his place of residence, unless it is made to appear by the affidavit that the residence is neither known to the affiant nor can with reasonable diligence be ascertained by him. To determine whether the circuit court acquired jurisdiction to render a decree impels a critical analyzation of the affidavit for the order of publication which is as follows:

"That I am plaintiff in the above-entitled suit. That the complaint in said suit was filed with the clerk of said court on the 19th day of December, 1911, and summons thereupon issued. That a cause of suit exists in favor of the plaintiff, George F. Felts, and against the defendants above named, the grounds of which are as follows: That this plaintiff is the owner in fee simple of the northwest quarter (1/4) of section twenty-two (22) in township twenty-nine (29) south, range eight (8) west, W. M., which real estate is in the state of Oregon. That the defendants are both nonresidents of this state, but claim some right, title, and interest to said real estate herein described, which claim is adverse to the claim of the plaintiff and his rights, and is therefore a cloud upon plaintiff's title. That defendants are necessary and proper parties defendant to said suit. That said summons, issued as aforesaid, was delivered to the sheriff of said county of Douglas, with directions to said sheriff to serve the same upon the defendants, and said sheriff has returned said summons to the clerk of this court with the return thereon indorsed to the effect that said defendants could not be found in his county. That said defendants cannot be found within this state, after due diligence has been exercised to find defendants, by inquiring of the postmaster in Roseburg, Oregon, and of the county assessor of said Douglas county, where said land lies, and also of the clerk and sheriff of said county; but none of said parties inquired of could tell where defendants are or their residence, but each and all claimed not to know them. And this plaintiff also inquired of one Benjamin F. Shields, a timber cruiser and a well-known resident of said Douglas county, Oregon, and one well conversant with the real estate in said county of Douglas, and knows the identical realty herein described; but he informed this affiant that he did not know and does not know the residence or the post office address of the defendants, or either of them. And this affiant says that he never knew the defendants, or either of them, and cannot find any one who ever was a neighbor or an acquaintance of the defendants. And he further says that he never knew of a residence maintained by the defendants in this state or elsewhere. Wherefore plaintiff, who is the affiant herein, says that the defendants are both nonresidents of this state and are not now within the state of Oregon; and inasmuch as he cannot find a residence or post office at which the defendants receive mail, and personally knows of no such residence or post office at

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