Holen v. Phelps

Decision Date26 March 1957
Docket NumberNo. 9337,9337
Citation131 Mont. 146,308 P.2d 624
PartiesKenneth HOLEN, Plaintiff and Respondent, v. Edmund J. PHELPS, Jr., et ux., and J. J. Mangan, et al., Defendants and Appellants.
CourtMontana Supreme Court

John Marriott Kline, Glasgow, argued orally, for appellants.

Bayuk & Lowney, Poplar, Jardine, Chase & Stephenson, Great Falls (Alex Blewett, Jr., Great Falls, argued orally), for respondent.

CASTLES, Justice.

This is an appeal from an order denying a petition for relief from a default judgment under the provisions of R.C.M.1947, Sec. 93-3905.

The plaintiff, respondent herein, filed a complaint on July 16, 1951, against the defendants, appellants, and others to quiet title to a quarter section of land in Roosevelt County. Respondent's attorney, after serving various parties within the State of Montana, made an affidavit for publication of summons, alleging that the last known address of the appellants was Malta, in Phillips County, Montana, and further alleging that from inquiry made, from the sheriff's return of summons, and from the records and files involved, the appellants are not within the jurisdiction of the State of Montana, and that they cannot be served in said state. Summons was then published upon an order of publication by the clerk of the court. The clerk made an affidavit showing that he mailed copies of the alias summons and complaint addressed to appellant Phelps and his wife at Malta, Montana. No return was made by the sheriff of Phillips County. On September 13, 1951, the default of the appellants, among others, was taken.

Findings of fact, conclusions of law and decree in this matter were signed on the 13th day of September, 1951. The court by its decree quieted title in the lands involved in favor of the respondent and against the appellants and other parties.

On June 7, 1952, the appellants filed a petition for relief from the judgment entered together with an affidavit of merits.

Appellants in their petiton and affidavit alleged: That they were served by mailing a copy of the summons and complaint to them at Malta, Montana, when neither of them had ever resided at Malta; that the facts of the claimed service by mail were discovered by their attorney checking the court files; that appellants' address for a great number of years had been Wayzata, Minnesota, which fact could have been easily discovered; that appellant, Edmund J. Phelps had been the owner of the land involved since 1923; that appellants told the facts to their attorney, and that he informed them they had a good defense.

Appellants further alleged in their petition: That the defense to the action was that they had been at all times the owners and holders to the title of the land; that Roosevelt County in 1929 attempted to obtain a tax deed to the land; that though the tax deed was taken, it was null and void due to the fact that Edmund J. Phelps was never served with any notice; that proper affidavits showing notice were not filed in the clerk and recorder's office or in the county treasurer's office in Roosevelt County; and that there was no affidavit showing the land was not occupied and no service was made upon the occupant, if any.

Appellants, in their affidavit of merits, also stated: that they resided for more than ten years in Wayzata, Minnesota; that they never had resided or been domiciled, or had an office in Montana; that they were never served with any papers in this action by mail or otherwise, and that their first notice of the action was on May 9, 1952, when their attorney, whom they had employed to check on the lands involved, advised them of it; that they never received notice of the application of the county for tax deed, and that they were not advised of said application until May 9, 1952.

The respondent, on the day of the hearing on the appellants' petition, filed an answer to the petition alleging that appellants did not state facts sufficient to support the claim for relief; that appellants were served by mailing a copy of summons and complaint to Malta, Montana, and by publication; that neither appellant resided in Malta, and that their address was for a great number of years outside the State of Montana.

Respondent further alleged that appellants had not been in possession of the land during any of the periods involved, and that respondent and his predecessor in interest had been in possession adversely for more than ten years prior to the commencement of this action. In an affidavit attached to the answer, respondent stated that his predecessor in interest obtained a tax deed to the land in 1929, and that respondent and his imnediate predecessor in interest have been in actual possession of the land for more than ten years, and that appellants have not been in possession.

On May 11, 1953, the district judge denied the appellants' petition to set aside the judgment.

The only question involved is whether the trial court was correct in denying appellants' petition.

R.C.M.1947, Sec. 93-3905, reads in part as follows: '* * * When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.'

In Reynolds v. Gladys Belle Oil Co., 75 Mont. 332, 340, 243 P. 576, 578, this court stated: 'The determination of the question rests within the sound legal discretion of the trial court (Eder v. Bereolos, 63 Mont. 363, 207 P. 471; Robinson v. Petersen, 63 Mont. 247, 206 P. 1092; Delaney v. Cook, 59 Mont. 92, 195 P. 833), and its action will only be reversed on appeal on a showing of manifest abuse of that discretion (Bowen v. Webb, 34 Mont. 61, 85 P. 739; Swilling v. Cottonwood Land Co., 44 Mont. 339, 119 P. 1102).

'However, since 'it is the policy of the law to have every litigated case tried on its merits,' judgments by default are not favored. Lovejoy v. Stutsman, 46 Okl. 122, 148 P. 175; Berri v. Rogero, 168 Cal. 736, 145 P. 95; McGinnis v. Beatty, 28 Wyo. 328, 204 P. 340; Greene v. Montana Brewing Co., supra [32 Mont. 102, 79 P. 693]; Brothers v. Brothers, supra [71 Mont. 378, 230 P. 60]. In furtherance of justice, trial courts should, in applying the above statute to a given case, maintain and exercise that liberal spirit which prompted the Legislature to grant them this discretionary power, and, while this court will disturb the action of a trial court in...

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13 cases
  • Roberts v. Empire Fire and Marine Ins. Co., 96-127
    • United States
    • Montana Supreme Court
    • September 11, 1996
    ...Flathead Cty. Comm'rs (1980), 188 Mont. 20, 610 P.2d 1153; Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 601 P.2d 47; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d 624). The record in the present case indicates that the summons, complaint, and first discovery requests were received at Em......
  • Lords v. Newman
    • United States
    • Montana Supreme Court
    • September 19, 1984
    ...cases. McClurg v. Flathead Cty. Com'rs (Mont.1980), 610 P.2d 1153, 37 St.Rep. 801; see also, Kootenai, supra; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d 624. The second standard of review arises where a trial court has considered but denied a motion to set aside the default. In these i......
  • White v. Connor
    • United States
    • Montana Supreme Court
    • July 22, 1960
    ...conclusions, the doubt should be resolved in favor of the motion. Worstell v. Devine, 1960, 135 Mont. 1, 335 P.2d 305; Holen v. Phelps, 131 Mont. 146, 308 P.2d 624; Waggoner v. Glacier Colony of Hutterites, 127 Mont. 140, 258 P.2d 1162; Nash v. Treat, 45 Mont. 250, 122 P. 745.' To apply the......
  • Luloff v. Blackburn, 95-191
    • United States
    • Montana Supreme Court
    • November 14, 1995
    ...274, 563 P.2d 546, 549 (citation omitted). See also YA Livestock Co. v. Harkness (1994), 269 Mont. 239, 887 P.2d 1211; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d 624; Blackfoot Land Development Co. v. Burks (1921), 60 Mont. 544, 199 P. 685; Peter v. Stephens (1891), 11 Mont. 115, 27 P.......
  • Request a trial to view additional results

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