Liebhardt v. Lawrence

• Decision Date: 06 June 1911
• Docket Number: 2209
• Citation: 40 Utah 243,120 P. 215
• Court: Utah Supreme Court
• Parties: LIEBHART v. LAWRENCE

120 P. 215

40 Utah 243

LIEBHART v. LAWRENCE

No. 2209

Supreme Court of Utah

June 6, 1911

Application for Rehearing, Denied January 13, 1912.

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Louis F. Liebhart against Franklin Lawrence.

Judgment dismissing complaint. Plaintiff appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

Rawlins Ray and Rawlins for appellant.

C. S Patterson for respondent.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The real estate in question, owned by the plaintiff in 1902, and prior thereto, was sold for taxes for that year. The certificate of sale was assigned to the defendant in 1907, who, in February of that year, obtained a tax deed. On the 4th day of October, 1907, he commenced an action in the district court of Salt Lake County, where the land is, against the plaintiff and others to quiet title. The claimed service of summons on the plaintiff was by publication. On the 28th day of December, 1907, the defendant obtained a judgment against the plaintiff and others by default, quieting the title in him. The plaintiff. on the 12th day of April, 1909, brought this action in equity to set aside the former judgment, to permit him to plead to the merits, to have adjudged the ownership of, and right of possession to, the property, and to have the title thereof quieted in him. This relief was asked on the alleged grounds that the affidavit upon which the order for publication of the summons in based was defective and insufficient; that the averment in the affidavit that plaintiff's "residence was unknown to the affiant" was falsely made; that neither a copy of the summons nor of the complaint was mailed to the plaintiff, and no sufficient reasons appearing why that was not done; that he was without knowledge, and had no notice, of the pendency of the action until long after the entry of the judgment; that, as soon as he learned of it, negotiations were entered into between him and the defendant to set aside the judgment; and upon allegations tendering a meritorious defense. The court found "that the service of the summons in" the former action "was duly and regularly had on" the plaintiff "by publication thereof in accordance with the requirements of law, and that the default and entry of judgment in said action was duly and regularly had;" that the plaintiff, within less than one year after the entry of such judgment, "had due notice and knowledge of the entry of said judgment; and that the said plaintiff herein did not at any time within one year after the entry of the judgment in said entitled cause appear therein and move the court to set aside the default entered against him, and permit him to answer to the merits in said action." Upon these findings, the court dismissed the plaintiff's complaint, and entered a judgment in favor of the defendant, from which the plaintiff has prosecuted this appeal.

The findings are largely in the nature of conclusions. The evidence, however, with respect to them is before us. The plaintiff was a resident of Denver, Colo., and had resided there for about twenty-five years. In 1902, and prior thereto, he was the owner of the property described as "lots 24 and 25, block 2, Denver Place, an addition to Salt Lake City." In that year the property was sold for taxes, the certificate of sale assigned to the defendant in 1907, and a tax deed given to him in February of that year. In deeds of conveyance of the property to plaintiff, made and recorded in 1897 and in 1900, his residence is stated to be in Denver, Colo. The assessment rolls show that the property, in 1901, and to and including 1907, was assessed to plaintiff, "Louis F. Liebhardt, care of Liebhardt Commission company, Denver, Colorado." The plaintiff paid the taxes on the property for the years 1903 to 1908, both inclusive. In October 1907, the defendant brought an action against the plaintiff and others to quiet title, and on the 28th day of December of that year obtained a judgment by default. Service of summons was attempted on plaintiff by publication. Graham Lawrence, a brother of the plaintiff in that action, on the 19th day of October, 1907, made and filed an affidavit therein that: "I am the agent and attorney in fact for the plaintiff, Franklin L. Lawrence; that I am a resident of Salt Lake County, Utah; that the plaintiff is absent from the said state, and that this affidavit is made on his behalf;" that the defendant, the plaintiff in this action, "Louis F. Liebhardt," and others (naming them), "each reside out of the State of Utah; and that the place of residence of each of the said defendants is to the affiant unknown." The affidavit further recited that the action was brought to quiet the title in the plaintiff in that action (the defendant in this), giving a description of the property, and stating that the defendants named in that action were necessary and proper parties. Upon this affidavit the county clerk made an order, directing a publication of the summons to be made in Truth, a local weekly periodical, the "newspaper" designated as most likely to give notice to the plaintiff and other named defendants in that action. Neither a copy of the summons nor of the complaint was mailed to the plaintiff; nor is it made to appear that any inquiry or investigation was made or any diligence used to ascertain his place of residence. It was assumed and found by the clerk that the place of his residence was unknown, solely upon the averment in the affidavit of Graham Lawrence that plaintiff's place of residence was unknown to him--"to the affiant unknown." For that reason, a copy of the summons and complaint was not mailed to plaintiff, and no effort made to do so.

The plaintiff had no knowledge that the property had been sold for taxes until the 31st day of October, 1908, when the county treasurer of Salt Lake County wrote him, stating that: "We herewith return tax receipt, the property being this year assessed to Franklin Lawrence, who has a tax deed on account of sale for taxes in 1902. He is represented in Salt Lake by Addison Cain, if you wish to communicate with him." The plaintiff thereupon wrote Addison Cain. Graham Lawrence, on December 2, 1908, answered: "Your letter to Mr. Addison Cain forwarded to me today. I have been waiting for my brother (Franklin Lawrence, the defendant) to come in. He is anxious to settle up all these old tax matters, and I expect him in here by the 12th or 15th and will procure you a quitclaim deed as soon as he comes in." On December 24, 1908, Graham Lawrence again wrote plaintiff in response to a letter from him: "Yours of the 21st at hand, and in reply will say that my brother was in day before yesterday. I talked the matter over thoroughly with him. He stated that he got a decree quieting title in this matter in a suit filed about two years ago." This statement tended to mislead, for the time of the writing of the letter was but four days less than one year from the entry of the decree. The letter proceeds: "He had supposed that you had finally abandoned this property (notwithstanding the plaintiff had paid all of the taxes on the property from 1903 to 1908) and he could get no track of you. However, if you care to make what he would consider a reasonable offer either way for a quitclaim deed, even at this time, he will be willing to do what is right and will pay or accept a fair offer." On February 4, 1909, and after the year had expired in which the plaintiff was permitted by motion to set aside the judgment and plead to the merits, Graham Lawrence again wrote to plaintiff that "there is absolutely no reason why you need be considered except as courtesy. . . . If you care to accept fifty dollars you are welcome to it under all the circumstances, but same is in nowise a necessity," etc. The plaintiff testified that in the first part of November, 1908, he learned that an action had been brought by the defendant to quiet title. He did not then know that a judgment had been taken against him, but immediately made inquiries and began the correspondence referred to. The defendant's judgment was had December 28, 1907.

We have a statute (Comp. Laws 1907, sec. 3005) which provides that:

"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."

This action, brought by the plaintiff, was commenced on the 12th day of April, 1909, about one year and three and one-half months after the defendant had obtained judgment in the former action. The court, finding that the service of summons on the plaintiff "was duly and regularly had" by publication in the former action, that within less than one year after the entry of such judgment he "had due notice and knowledge of the entry of said judgment," and that he did not, within one year "after the entry of the judgment," move the court to set aside the default and to permit him to answer to the merits, dismissed this action, and entered a judgment for the defendant.

In so disposing of the case, the court must have been of the opinion that the remedy provided by section 3005 was exclusive, or that an action in equity is not broader than the remedy provided in that section, and that it likewise must be brought within one year after the entry of the judgment. The court did not find nor state any conclusions that the plaintiff was guilty of laches. The court disposed of the case on the theory that the plaintiff (the defendant in the former action), having been "duly and regularly" served with summons by...