Okanogan State Bank of Riverside, Wash. v. Thompson
| Decision Date | 09 January 1923 |
| Citation | 106 Or. 447,211 P. 933 |
| Parties | OKANOGAN STATE BANK OF RIVERSIDE, WASH., v. THOMPSON ET AL. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Morrow County; Gilbert W. Phelps, Judge.
Suit by the Okanogan State Bank of Riverside, Wash., against M. Belle Thompson and another. Decree for defendants on demurrer, and plaintiff appeals. Reversed and remanded.
R. R. Butler, of The Dalles (Sam E. Van Vactor, of The Dalles, on the brief), for appellant.
Clinton E. Woodson, of Heppner (C. A. Sweek, of Burns, and J. J. Nys of Heppner, on the brief), for respondents.
This is a suit to enjoin an execution sale, advertised to take place pursuant to a writ of execution issued upon a judgment against one Frank P. Farnsworth, and levied upon lands which plaintiff claims to own, and to cancel the judgment mentioned. From a decree sustaining a general demurrer to plaintiff's complaint and dismissing the suit, plaintiff appeals.
The complaint sets forth that plaintiff is a Washington corporation not doing business within the state of Oregon that on December 6, 1919, defendant M. Belle Thompson instituted an action in the circuit court for Morrow county against Frank P. Farnsworth, and in her complaint therein prayed for judgment against Farnsworth "for the sum of $1,500, with interest thereon at the rate of 8 per cent. per annum from February 10, 1913, for the further sum of $250 attorney's fees, and for her costs and disbursements of said action." Writs of attachment were regularly issued, and real property in Morrow, Baker, and Gilliam counties, as that of Farnsworth, was attached.
Farnsworth was a nonresident of the state of Oregon, and resided at Riverside in the state of Washington. On and prior to the 18th day of August, 1919, he owned an interest in the real property thus attached, and on that date he executed and delivered to plaintiff a deed, purporting to convey his interest in the same to plaintiff, subject to administration charges in, and claims against, the estate of O. E. Farnsworth, which estate was then in process of administration. The real property referred to in the conveyance constituted assets of that estate. Plaintiff did not record its deed until the 19th day of May, 1920, when the same was placed on file and recorded in the records of deeds of Morrow county, Or.
On the 10th day of May, 1920, upon the application and affidavit of defendant M. Belle Thompson, an order for the publication of summons against said Frank P. Farnsworth was regularly entered in the action against him, and thereafter, on the 14th day of May, 1920, Farnsworth was personally served with summons and complaint in the state of Washington.
The summons served upon Farnsworth recited the name of the court, title of the cause, the date fixed for the appearance of defendant therein, and also contained this notice:
"* * * You are hereby notified that in case you fail to so appear or answer, for want thereof plaintiff will take judgment against you for $1,500, with interest thereon at the rate of 8 per cent. per annum from February 10, 1913, for the further sum of $250 attorney's fee and for the costs and disbursements of this action."
Defendant having failed to appear, and having made default, judgment was entered in favor of M. Belle Thompson, and against the defendant Frank P. Farnsworth, for the sums of money demanded in the complaint and in the summons, and it was further ordered and directed that attachment execution issue, directing that all of the interest of defendant Frank P. Farnsworth in and to the real property theretofore attached be sold under execution for the payment and satisfaction of such judgment.
Plaintiff also alleges that the judgment constitutes a cloud on its title to the real property attached in the action and ordered sold in the judgment, and that the defendant Elmer Montague, sheriff of Gilliam county, is now proceeding to advertise the real property, situated in his county and attached in said action, for sale upon execution, and, unless restrained, he will sell the same for the purpose of applying the proceeds to the satisfaction of the judgment in favor of defendant Thompson.
Plaintiff contends that in order to give any validity to a judgment based thereon, a summons published in an action for the recovery of money only must notify the nonresident defendant, who makes no appearance, that specified property belonging to him has been attached, and that plaintiff will apply for an order for the sale thereof to satisfy any judgment that may be recovered by plaintiff. That contention is founded upon the direction contained in section 56, Or. L., that the summons published "shall contain * * * a succinct statement of the relief demanded."
It must be conceded that a judgment such as that attacked in the instant case is a nullity, where there has not been substantial compliance with the statutory requirements of notice to the defendant. Bagley v. Bloch, 83 Or. 607, 620, 163 P. 425, where earlier Oregon cases are collected and cited.
Under our practice, the complaint is the only pleading wherein the relief sought is demanded. One of the requisites of a complaint prescribed by the statute (section 67, Or. L., subd. 3), is that it shall contain:
The intention of plaintiff to attach property of the defendant does not impose any statutory obligation to so state in the demand for relief made in the complaint.
Where personal service of summons is made within the state, there is required to be inserted in the summons a notice:
Section 53, Or. L.
In the case of George v. Nowlan, 38 Or. 537, 543, 64 P. 1, 3, the court, considering the requirement of the statute that the summons published shall contain, among other things, "a succinct statement of the relief demanded," said:
"This statute, as the language imports, does not require the summons to contain a full statement of the relief demanded in the complaint, but simply a concise or summary statement thereof."
To similar effect, see Lane v. Ball, 83 Or. 404, 422, 160 P. 144, 163 P. 975.
No demand for recovery or relief against the defendant is incorporated in the attachment proceedings, to which by the terms of the statute resort may be had only after the complaint has been filed and at the time of, or after, the issuance of summons, and for the purpose of bringing property of the defendant within the jurisdiction of the court as security for the satisfaction of any judgment that may be recovered. Section 295, Or. L.
All the statutory provisions referred to were adopted prior to the decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and when it was assumed in most jurisdictions that a judgment against a nonresident defendant, supported by substituted service only and without prior attachment of property, was valid as against any property of such defendant situated within the territorial jurisdiction of the court rendering the judgment. Goodale v. Coffee, 24 Or. 346, 353, 33 P. 990; Case note, 50 L. R. A. 577 et seq. It is clear, therefore, that the requirement that the summons published "shall contain * * * a succinct statement of the relief demanded" refers to the demand for relief set forth in the prayer of the complaint.
The summons to which objection is made contains a statement of the relief demanded in the very words of the recovery demanded in the complaint, and therefore was in strict compliance with the statute. But plaintiff insists that, unless the summons which is published or served personally upon a nonresident in the state of his residence pursuant to an order for publication contains a notice to the defendant that property belonging to him has been attached and will be condemned in satisfaction of any judgment that may be obtained against him, it does not meet the requirements of the "due process of law" clause of the Fourteenth Amendment to the Constitution of the United States. The decisions of the Supreme Court of the United States hereinafter cited establish that the Fourteenth Amendment to the federal Constitution controls the forms of procedure and regulates the practice in state courts only to the extent of requiring that a party shall have full notice and reasonable opportunity to be heard before judicial sentence is passed against him or his property.
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