Mills v. Smiley

• Decision Date: 14 May 1904
• Citation: 76 P. 786,9 Idaho 325
• Parties: MILLS v. SMILEY
• Court: Idaho Supreme Court

76 P. 786

9 Idaho 325

MILLS v. SMILEY

Supreme Court of Idaho

May 14, 1904

MILLS v. SMILEY.

SERVICE OF NOTICE OF APPEAL-SERVICE OF SUMMONS BY PUBLICATION-AFFIDAVIT FOR PUBLICATION-ORDER OF PUBLICATION-JURISDICTION.

1. Where a judgment and decree of foreclosure has been entered and a sale thereunder has been made to a person not a party to the action, in satisfaction of such judgment, and a writ of assistance has been issued against a person not a party to the foreclosure suit, it is not necessary that a notice of appeal from the order granting such writ be served on all the parties to the foreclosure action.

2. An affidavit for publication of summons which states "that due and diligent search has been made for the defendants, and that said defendants cannot be found within the state of Idaho," without stating the facts which constitute such "due and diligent search," is insufficient to authorize the making an order for publication and an order and publication made thereon is without jurisdiction, and void.

3. An affidavit in such case should show whether the defendant is a resident or nonresident of the state, and his last known place of residence, or if unknown such fact should appear.

4. In case of service by publication upon a nonresident or absent defendant where his place of residence is known, the order must direct a copy of the summons and complaint to be mailed to such defendant at his place of residence.

5. The return of an officer showing that he could not find a defendant in his county seven months prior to the application for the order of publication is not evidence of the absence of the defendant at the time of such application, and cannot be properly considered in making the order.

6. In order to acquire jurisdiction by publication of summons, all the statutory requirements authorizing such service must receive a substantial compliance.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District in and for the County of Latah. Honorable E. C. Steele, Judge.

From an order denying a motion to vacate and set aside a writ of assistance defendant appeals. Reversed.

Remanded, with instructions.

A. J Green and S. S. Denning, for Appellant.

Forney & Moore, for Respondent.

AILSHIE J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

After the filing of the opinion in this case the appellant presented a petition for a rehearing, urging strongly the want of jurisdiction in the lower court to issue the writ of assistance complained of in the case. Upon that petition a rehearing was granted and the case was again argued at the March term of this court. Prior to the last argument the respondent filed another motion to dismiss the appeal based on the grounds that notice of appeal was not served upon A. L. Mills, Pauline E. Maupin, Samuel Geer, Thomas M. Morgan, Rachael Morgan, M. J. Shields Company, a corporation, C. F. Adams and the Security Savings and Trust Company, or either of them. All of these parties were parties to the original foreclosure proceedings. It is claimed that upon the authority of Titiman v. Alamance Min. Co., ante, p. 240, 74 P. 529, and Baker v. Drews, ante, p. 276, 74 P. 1130, decided by this court, the appeal should be dismissed. This case does not fall within the rule announced in those cases, for the reason that this appeal is not taken from the judgment of foreclosure entered in the original case, but is rather an appeal questioning the authority of the court to issue a writ of assistance in favor of the purchaser at an execution sale. Whatever conclusion we may reach on this appeal, we cannot "reverse, affirm or modify" the judgment entered in the foreclosure case. This controversy arises solely between the purchaser and the party in possession, and our decision upon this appeal can only "reverse, affirm or modify the order of judgment" of the court in granting and refusing to vacate the writ of assistance. The only parties to that writ, or who will be, within the meaning of this statute, affected by the decision on this appeal are Thorp and Smiley. The motion to dismiss the appeal will therefore be denied.

Upon the reargument of this case much stress has been placed on the insufficiency of the judgment-roll in the original case to show jurisdiction in the court to render the judgment and decree upon which the sale to Thorp was made and for the enforcement of the terms of which sale the writ was issued. At the first hearing our attention was directed principally to appellant's right to appeal in such case, and the application of the provisions of section 4520 of the Revised Statutes to a party in possession holding an unrecorded deed at the time suit is commenced, and therefore the question of jurisdiction was not considered by us in the former opinion.

Upon the hearing before the district judge on the motion to vacate and set aside the writ of assistance, the judge had before him the judgment-roll in the original foreclosure proceeding, the petition for writ of assistance, the writ of assistance, notice of motion, motion and the affidavit of A. J. Green, together with the deed of conveyance from Thomas M. Morgan and wife to the appellant Smiley, and the record on appeal contains all the papers used upon the hearing in the lower court. For the purpose of ascertaining whether or not the writ of assistance was properly issued, we will look to the record made in the foreclosure suit to see if the court had obtained jurisdiction to enter the decree therein. (Vermont Loan etc. Co. v. McGregor, 5 Idaho 510, 51 P. 104.)

Much of the history of this case is recited in the original opinion by Mr. Justice Stockslager, and we therefore recite only such further facts as are necessary to a complete understanding of the question here discussed. Personal service of summons was made only upon M. J. Shields Co., a corporation, and Samuel Geer, and the sheriff after certifying to the service of summons upon these two parties, further says in his return: "I hereby certify that I received the within summons on the twenty-fourth day of September, A. D. 1896, and after diligent search and due inquiry, I have failed to find the within-named defendants, Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. F. Adams and Security Savings and Trust Company, a corporation, in Latah county, state of Idaho being five of the defendants named in the said summons."

This return was made on the sixteenth day of October, 1896, and on the twenty-seventh day of May, 1897, an affidavit for publication of summons was made and filed as follows:

"Edwin T. Coman, being first duly sworn upon oath, deposes and says that he is agent and one of the attorneys for the plaintiff in the above-entitled action; that due and diligent search has been made for the defendants Pauline E. Maupin, Thomas M. Morgan, Richael Morgan, C. F. Adams and the Security Savings and Trust Company of Portland, Oregon, a corporation, and that said defendants cannot be found within the state of Idaho.

"EDWIN T. COMAN."

And on the same day that the affidavit was made the district judge entered his order for publication of summons as follows:

"This cause coming on to be heard this seventeenth day of May, 1897, before the Honorable W. G. Piper, judge of the above-entitled court. The court having before it the files in the cause including the original summons with the sheriff's return thereon, and the affidavit of Edwin T. Coman, one of the attorneys, for the plaintiff, and it appearing from the files and affidavit that the defendants Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. F. Adams, and the Security Savings and Trust Company are nonresidents of the state of Idaho and that they cannot be found after due and diligent search within the state of Idaho and therefore it is considered and ordered that said defendants Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. F. Adams and the Security Savings and Trust Company be served by publication of said summons herein in the 'Moscow Mirror,' a paper published in the city of Moscow for once each week for six consecutive weeks.

"Done in open court this seventeenth day of May, 1897.

"W. G. PIPER,

"Presiding Judge."

The summons was thereafter published in the "Mirror," of Moscow, and proof thereof was made and filed on the seventh day of December, 1897. None of the defendants appeared and default was entered against each and all of them, and judgment thereafter was rendered and entered and proceedings had as set forth in the original opinion in this case.

By the provisions of our statute, constructive service may be made in certain cases upon the happening of the contingencies therein enumerated. Section 4145, Revised Statutes, provides "When the person on whom the service is to be made resides out of the territory, or has departed from the territory, or cannot, after due diligence, be found within the territory, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier, or secretary within the territory, and the fact appears by affidavit to the satisfaction of the court...