E. J. Lander & Co. v. Brown

• Decision Date: 17 February 1940
• Docket Number: 7994.
• Parties: E. J. LANDER & CO. v. BROWN et ux.
• Court: Montana Supreme Court

99 P.2d 216

110 Mont. 128

E. J. LANDER & CO. v. BROWN et ux.

No. 7994.

Supreme Court of Montana

February 17, 1940

Appeal from Ninth District Court, Glacier County; R. W. Hattersley Judge.

Action to quiet title by E. J. Lander & Company, a corporation against Leo Brown and wife, who filed a cross-complaint to quiet title in themselves. Judgment for plaintiff, and defendants appeal.

Affirmed.

J. E Burdett, Jr., of Browning, for appellants.

J. M Kline, of Glasgow, for respondent.

JOHNSON Chief Justice.

Defendants have appealed from a judgment in plaintiff's favor quieting title to certain land in Glacier county, in an action in which they had filed a cross-complaint to quiet title in themselves.

In 1919 defendants, then owners of the property, gave plaintiff a mortgage thereon, which it foreclosed in 1921. Plaintiff has claimed title since 1926 as successor in interest to the grantee named in the sheriff's deed.

The defendants defaulted in the foreclosure suit and it is their contention here that the decree of foreclosure is void because of alleged defects in the sheriff's return of service of summons. That return is as follows, the words not italicized constituting the printed form on the back of the summons, and the words italicized having been inserted with pen and ink by the deputy sheriff:

"Office of the Sheriff

County of Glacier,

State of Montana.

I hereby certify, that I have received the within Summons on the 30th day of Sept. A. D. 1921, and personally served the same on the 30th day of Sept. A. D. 1921, upon Leo Brown Eva Brown by delivering to said Leo Brown & Eva Brown personally in the County of Glacier a copy of said summons, and a copy of the Complaint referred to in said Summons.

Dated at Browning this 30th day of Sept. A. D. 1921.

P. A. Davis, Sheriff

By Chas. Simon, Dpty.

Service ...	$2.00
Copy ......	$____
Mileage ....	$.40
Total ....	$2.40"

The alleged defects in the return are, first, that the return merely states that service was made upon Leo Brown and Eva Brown without identifying them as the defendants in the case; second, that it states that it was made upon them "by delivering to said Leo Brown and Eva Brown personally in the county of Glacier a copy of said summons and a copy of the complaint referred to in said summons."

In the present case the trial court set forth in its findings the return in the foreclosure suit and expressly stated that no other evidence was submitted to it with reference to the service. The trial judge then proceeded to make further excellently detailed and complete findings and conclusions and to enter decree in plaintiff's favor.

This is a collateral attack upon the foreclosure decree. By "collateral attack" is meant every proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or on appeal thereof, and except suits brought to obtain decrees declaring judgments to be void ab initio. Burke v. Inter-State Savings & Loan Ass'n, 25 Mont. 315, 64 P. 879, 87 Am.St.Rep. 416; Jenkins v. Carroll, 42 Mont. 302, 112 P. 1064; Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266; Thompson v. Chicago, Burlington & Quincy R. R. Co., 78 Mont. 170, 253 P. 313; State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 P.2d 39; Frisbee v. Coburn, 101 Mont. 58, 52 P.2d 882; Hanrahan v. Andersen, 108 Mont. 218, 90 P.2d 494. Thus, ?? quiet title suit is a collateral attack on former judgments or records. Burke v. Inter-State Savings & Loan Ass'n, supra; Thompson v. Chicago, Burlington & Quincy R. R. Co., supra; Frisbee v. Coburn, supra.

On collateral attack upon a judgment of a domestic court of general jurisdiction acting within its ordinary scope, the presumption of jurisdiction over the persons of the parties is conclusive, unless a lack of it affirmatively appears upon the face of the judgment roll. Hanrahan v. Andersen, 108 Mont. 218, 90 P.2d 494, and cases therein cited.

The first objection that Leo Brown and Eva Brown were not identified in the return as the defendants is immaterial since the names there stated are identical with the names of the defendants in the suit, and identity of persons is presumed from identity of names. Subd. 25, sec. 10606, R.C.

The second objection is quite technical. The statutory requirement of course is that personal service be made by delivering a copy of the summons together with a copy of the complaint to each defendant, except that if two or more of them reside within the same county a copy of the complaint need be delivered to only one of them. Secs. 9110, 9111, R.C Appellants' contention is that the return shows that only one copy of the summons was delivered to the defendants, thus constituting a joint service, which is not valid service under the statute. But even if only one copy of the summons was actually used that fact would not necessarily indicate a joint service, since the one copy might in some way have been used successively in serving each party individually. Thus if we interpret that part of the return literally as indicating that only one copy of the summons was delivered to the two defend...