Nicoll v. Midland Sav. & Loan Co. of Denver

• Decision Date: 25 June 1908
• Docket Number: Case Number: 2094 OK Ter
• Citation: 1908 OK 142,21 Okla. 591,96 P. 744
• Parties: NICOLL et ux. v. MIDLAND SAVINGS & LOAN CO. OF DENVER, COLO.
• Court: Oklahoma Supreme Court

1908 OK 142

96 P. 744

21 Okla. 591

NICOLL et ux. v. MIDLAND SAVINGS & LOAN CO. OF DENVER, COLO.

Case Number: 2094 OK Ter

Supreme Court of Oklahoma

Decided: June 25, 1908

Syllabus

¶0 1. CORPORATIONS--Foreign Corporation--Process--Service by Publication--Affidavit--Sufficiency. Where the affidavit for service on a foreign corporation by publication (section 4276 Wilson's Rev. & Ann. St. 1903) does not allege that such corporation had failed to comply with the requirements to do business in the territory of Oklahoma, including the designation of an agent upon whom service may be had, a judgment rendered thereon without further notice upon or any appearance by such corporation is void.

2. SAME. Where publication service is relied on solely, and it is alleged in the affidavit therefor that, with the exercise of due diligence, the plaintiff is unable to procure service of summons on the defendant within the territory (state), the facts necessary to show that due diligence was used to obtain personal service should be stated, and, where judgment is rendered against a foreign corporation without such requirements being complied with, it is void.

3. JUDGMENT--Vacation of Void Judgment. A void judgment may be vacated and set aside at any time on motion of the defendant.

Error from District Court, Noble County; B. T. Hainer, Judge.

Action to quiet title by C. K. Nicoll and wife against the Midland Savings & Loan Company of Denver, Colo. Judgment for plaintiffs, and, the same having been thereafter set aside on defendant's motion, plaintiffs bring error. Affirmed.

On the 28th day of February, 1903, the plaintiffs in error, as plaintiffs, instituted an action in the district court of Noble county, territory of Oklahoma, to quiet title to certain real estate in the city of Perry. Affidavit for service by publication was made by C. K. Nicoll, one of said plaintiffs, and filed with the clerk of said court on said date; the body of which said affidavit being in words and figures as follows:

"C. K. Nicoll on his oath says that he is one of the plaintiffs in the above-entitled action, and that the defendant is a foreign corporation, and is a nonresident of the territory of Oklahoma, and has not complied with the law by designating a person on whom to serve process in Noble county, Okla. T., and has no office of place of business in said county, and that these plaintiffs with the exercise of due diligence are unable to procure service of summons on the said defendant within the territory of Oklahoma. Affiant further states that these plaintiffs have filed with the clerk of the district court of said county and territory their petition asking for the cancellation of one certain principal bond and deed of trust mortgage given to secure the same, dated September 1, 1899, and for $ 500 with interest and premium thereon in favor of the defendant, on the following described real estate in Noble county and Oklahoma Territory, to wit: Lots 16 and 17 in block 65 in the townsite of North and West Perry. And further asking that the title in and to said property be quieted in plaintiffs."

And thereafter, on same date, notice for publication in due form was issued by the clerk of said court and publication made in the Weekly Enterprise-Times, a weekly newspaper in said county, the first publication beginning with March 5, 1903, and continued therein for four consecutive weeks; proof of such publication having been made and filed with the clerk of said court June 23, 1903.

Plaintiffs in their petition in said cause alleged that the defendant was a foreign corporation organized under and by virtue of the laws of the state of Colorado; and, further, that they were the owners in fee simple and in the actual possession of certain lots located in North and West Perry, Noble county, Okla. T., and that the defendants claimed a mortgage lien thereon in the sum of about $ 500, when plaintiffs alleged that there was only due $ 38.35, whereupon they tendered the sum in court, and asked that said mortgage be cancelled and held for naught, attaching a copy of said mortgage or trust deed to their petition as an exhibit.

Afterwards, on the 1st day of July, 1903, said cause coming on to be heard in the district court, the plaintiffs appearing by their attorneys and the defendant making no appearance, the court adjudged said defendant to be in default, and decreed that the allegations of the petition therein should be taken as true against the said defendant, and thereupon plaintiff further introduced evidence to support such allegations, and "the court, after hearing said evidence and considering the same, together with the argument of counsel herein, finds that the defendant has been duly and regularly served by publication ariel summons issued in said cause, and, after the inspection of said service and the affidavit on which same was issued, the court finds the same to be correct in all respects and in conformity with law," and decreed the plaintiffs to be entitled to the relief prayed for.

Thereafter: on the 31st day of January, 1906, the defendant appeared specially, and tiled in said court its motion to vacate and set aside said judgment on the ground that the same was void, which was granted.

Doyle & Cress, for plaintiffs in error.

H. B. Martin, for defendant in error.

WILLIAMS, C. J.

¶1 (after stating the facts as above). The only question necessary to determine in this case is whether or not the judgment rendered by the district court against the defendant is void for, if void, the motion to set aside the same at the instance of said defendant was properly sustained. Phoenix Bridge Co. v. Street, 9 Okla. 422, 60 P. 221; Foreman v. Carter, 9 Kan. 674; First Nat. Bank v. Grimes Dry Goods Co., 45 Kan. 510, 26 P. 56; Foster v. Cimarron Val. Bank, 14 Okla. 24, 76 P. 145; Clark v. Little, 41 Iowa 497 ; Thomas v. American Freehold Land & Mortgage Co., (C. C.) 47 F. 550, 12 L.R.A. 681.

¶2 Section 48, c. 66, Wilson's Rev. & Ann. St., provides that actions for the recovery of real property or of any estate or interest therein or the determination in any form of any such right or interest must be brought in the county in which said property is situated, except as provided in section 49. Said section 49 provides that in case the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts, situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover possession thereof; and, if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties; but, if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated, and further provides that an action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them reside. See Burke v. Malaby et al., 14 Okla. 650, 78 P. 105. The action instituted by plaintiffs against the defendant to quiet title to the lots in question would have necessitated the determination as to whether or not the defendant, a foreign corporation, had any interest therein, equitable or otherwise, and the same was properly...