Ihnot v. Ihnot, No. 99-350.

Docket NºNo. 99-350.
Citation2000 MT 77, 299 Mont. 137, 999 P.2d 303
Case DateMarch 23, 2000
CourtUnited States State Supreme Court of Montana

999 P.2d 303
2000 MT 77
299 Mont. 137

Richard IHNOT, Plaintiff and Appellant,
v.
John IHNOT, Defendant and Respondent

No. 99-350.

Supreme Court of Montana.

Submitted on Briefs September 23, 1999.

Decided March 23, 2000.

Rehearing Denied April 13, 2000.


999 P.2d 304
William A. Douglas, Douglas Law Firm, Libby, Montana, For Appellant

Gerald T. Archambeault, Tony C. Koenig, Gallagher & Archambeault, Glasgow, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 Richard Ihnot, (Richard) appeals the May 19, 1999 Order of the Seventeenth Judicial District Court, Valley County, granting Respondent John Ihnot's (John) motion to dismiss. We reverse and remand.

¶ 2 The issue on appeal is whether the District Court erred in dismissing Richard's action to set aside the default judgment.

FACTUAL BACKGROUND

¶ 3 In March of 1995, John conveyed to Richard, by quitclaim deed, a farm and residence in Valley County, Montana. On March 3, 1996, Richard left for the Philippines in order to be married. Before leaving, Richard made arrangements with another individual in the area to farm the property and to live in the residence on Richard's farm. On April 9, 1996, John filed an action seeking to cancel the 1995 quitclaim deed, and served the Summons and Complaint upon Richard by publication pursuant to Rule 4 D, M.R.Civ.P.

¶ 4 In his Affidavit for Publication of Summons, John stated that he had been unable to determine Richard's present residence and post office address and that there was no forwarding address for him. The District Court entered judgment in favor of John on June 17, 1996. On February 23, 1999, Richard filed a complaint stating that the service by publication and the resulting judgment were void because of extrinsic fraud by John. Richard alleges that John failed to send copies of the Summons and Complaint to his place of residence and failed to state in his Affidavit for Publication "that the residence of the Defendant is unknown" as required under Rule 4 D, M.R.Civ.P.

¶ 5 Did the District Court err in dismissing Richard's action to set aside the default judgment?

STANDARD OF REVIEW

¶ 6 We review a district court's grant of a motion to dismiss to determine whether the court abused its discretion. In re McGurran, 1999 MT 192, ¶ 7, 295 Mont. 357, ¶ 7, 983 P.2d 968, ¶ 7.

¶ 7 Richard argues that the District Court erred in dismissing his action to set aside the default judgment against him because in obtaining that judgment, John did not comply with the requirements of Rule 4 D(5)(e), M.R.Civ.P. Richard claims that John failed to state in his Affidavit for Publication

999 P.2d 305
that Richard's residence was unknown, and failed to send copies of the Summons for Publication and Complaint to Richard's place of residence. As a result, Richard argues that the constructive service by publication was fatally defective and rendered the judgment predicated on such service void

¶ 8 The nature of service is twofold: it serves notice to a party that litigation is pending, and it vests a court with jurisdiction. Improper service undermines a...

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5 practice notes
  • Profess. Sports v. Nat. Indoor Foot. League, No. DA 06-0654.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 24, 2008
    ...not employed by NIFL. ¶ 23 Defective service of process constitutes proper grounds to set aside a default judgment. E.g. Ihnot v. Ihnot, 2000 MT 77, ¶ 8, 299 Mont. 137, ¶ 8, 999 P.2d 303, ¶ 8; Sink v. Squire, 236 Mont. 269, 273, 769 P.2d 706, 708 (1989); Joseph Russell Rlty. Co. v. Kenneall......
  • Raap v. Bd. of Trs., DA 17-0386
    • United States
    • Montana United States State Supreme Court of Montana
    • March 27, 2018
    ...and factual analysis to show the factual and legal grounds for their decision under the applicable legal analysis. See Ihnot v. Ihnot , 2000 MT 77, ¶ 15, 299 Mont. 137, 999 P.2d 303 (cursory order based on undeveloped record without findings of fact or conclusions of law precluded appellate......
  • Nikolaisen v. Advance Transformer Co., No. 05-727.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 19, 2007
    ...judgment is void because without proper service the district court does not obtain personal jurisdiction over a party. See Ihnot v. Ihnot, 2000 MT 77, ¶ 8, 299 Mont. 137, ¶ 8, 999 P.2d 303, ¶ 8. Each step of the procedure prescribed by Rule 4(D) requires strict and literal compliance to sup......
  • State v. Sweeney, No. 99-068.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 23, 2000
    ...404(b), M.R.Evid. Therefore, we hold that the District Court abused its discretion in admitting evidence relating to Sweeney's 1989 sexual 999 P.2d 303 assault conviction under Rule 404(b), M.R.Evid., and remand this case to the District Court for a new ¶ 37 Since we reverse and remand for ......
  • Request a trial to view additional results
5 cases
  • Profess. Sports v. Nat. Indoor Foot. League, No. DA 06-0654.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 24, 2008
    ...not employed by NIFL. ¶ 23 Defective service of process constitutes proper grounds to set aside a default judgment. E.g. Ihnot v. Ihnot, 2000 MT 77, ¶ 8, 299 Mont. 137, ¶ 8, 999 P.2d 303, ¶ 8; Sink v. Squire, 236 Mont. 269, 273, 769 P.2d 706, 708 (1989); Joseph Russell Rlty. Co. v. Kenneall......
  • Raap v. Bd. of Trs., DA 17-0386
    • United States
    • Montana United States State Supreme Court of Montana
    • March 27, 2018
    ...and factual analysis to show the factual and legal grounds for their decision under the applicable legal analysis. See Ihnot v. Ihnot , 2000 MT 77, ¶ 15, 299 Mont. 137, 999 P.2d 303 (cursory order based on undeveloped record without findings of fact or conclusions of law precluded appellate......
  • Nikolaisen v. Advance Transformer Co., No. 05-727.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 19, 2007
    ...judgment is void because without proper service the district court does not obtain personal jurisdiction over a party. See Ihnot v. Ihnot, 2000 MT 77, ¶ 8, 299 Mont. 137, ¶ 8, 999 P.2d 303, ¶ 8. Each step of the procedure prescribed by Rule 4(D) requires strict and literal compliance to sup......
  • State v. Sweeney, No. 99-068.
    • United States
    • Montana United States State Supreme Court of Montana
    • March 23, 2000
    ...404(b), M.R.Evid. Therefore, we hold that the District Court abused its discretion in admitting evidence relating to Sweeney's 1989 sexual 999 P.2d 303 assault conviction under Rule 404(b), M.R.Evid., and remand this case to the District Court for a new ¶ 37 Since we reverse and remand for ......
  • Request a trial to view additional results

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