Ihnot v. Ihnot
Decision Date | 23 March 2000 |
Docket Number | No. 99-350.,99-350. |
Citation | 2000 MT 77,299 Mont. 137,999 P.2d 303 |
Parties | Richard IHNOT, Plaintiff and Appellant, v. John IHNOT, Defendant and Respondent. |
Court | Montana Supreme Court |
William A. Douglas, Douglas Law Firm, Libby, Montana, For Appellant.
Gerald T. Archambeault, Tony C. Koenig, Gallagher & Archambeault, Glasgow, Montana, For Respondent.
¶ 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.
¶ 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?
¶ 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 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 court's jurisdiction, and a default judgment subsequently entered is thereby void. Fonk v. Ulsher (1993), 260 Mont. 379, 383, 860 P.2d 145, 147.
¶ 9 Rule 4 D, M.R.Civ.P. governs service of process. Section (5)(a) permits service by publication (constructive service) only in limited contexts;
(i) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein.
¶ 11 Section (5)(e) requires a plaintiff to mail a copy of the summons for publication and complaint to a defendant's place of residence, "any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons," unless the affidavit for publication states that the residence of the defendant is unknown. Rule 4 D(5)(e), M.R.Civ.P.
¶ 12 This Court has previously required strict and literal compliance with the statutory procedures for constructive service. Sink v. Squire (1989), 236 Mont. 269, 273, 769 P.2d 706, 708.
It is the settled judicial policy of this state that more accurate observance, with regard to compliance with provisions of the statutes, is required in constructive service than in personal service....
Sink, 236 Mont. at 273, 769 P.2d at 708.
¶ 13 Richard alleges that the Affidavit for Publication and the Summons failed to comply with the mandatary requirements of Rule 4 D, M.R.Civ.P. This Court has held that service may be fatally flawed for failure to submit a sufficient affidavit in compliance with Rule 4 D. Shields v. Pirkle Refrigerated Freightlines, Inc. (1979), 181 Mont. 37, 45, 591 P.2d 1120, 1125 ( ). Furthermore, insufficient service of process is an ample ground to vacate a default judgment. In re Marriage of Shikany (1994), 268 Mont. 493, 497-98, 887 P.2d...
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