Park v. Higbee

• Decision Date: 12 July 1890
• Citation: 6 Utah 414,24 P. 524
• Court: Utah Supreme Court
• Parties: BOYD PARK AND ANOTHER, APPELLANTS, v. LUCY M. HIGBEE, RESPONDENT

24 P. 524

6 Utah 414

BOYD PARK AND ANOTHER, APPELLANTS, v. LUCY M. HIGBEE, RESPONDENT

Supreme Court of Utah

July 12, 1890

APPEAL from an order of the district court of the first district vacating a judgment. The sections of the statute are as follows: "The order must direct the publication to be made in a newspaper to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the Territory or absent therefrom, must not be less than one month. In case of publication when the residence of a non-resident or absent defendant is known, the court or judge must direct a copy of the summons and complaint to be forthwith deposited (post-paid) in the postoffice, directed to the person to be served, at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the Territory is equivalent to publication and deposit in the postoffice; and in either case the service of the summons is complete at the expiration of the time presented by the order for publication."

Affirmed, and cause remanded.

Mr Jabez G. Sutherland for the appellants.

Mr Charles C. Dey for the respondent.

BLACKBURN J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

BLACKBURN, J.

This is a suit in partition under the statutes. The respondent is a non-resident. An order of sale of the property was made September 11, 1888, by default, and was sold for the sum of $ 3,500 to the plaintiff, Boyd Park, October 13, 1888. An order confirming the sale was made the same date. On November 9, 1889, a motion was made by respondent to set aside default and judgment, and all subsequent proceedings thereunder; she appearing specially for the purpose of the motion. On December 9, 1889, the court being fully advised in the premises, ordered that said motion be sustained, and that said decree, and all proceedings thereunder, be set aside and vacated, to which order defendant duly excepted. From this last order this appeal is taken. The motion was based on the alleged fact that the defendant was never served with process, and the court had not acquired jurisdiction of her person. It is claimed by appellants that the respondent was duly served with process by publication. The order of publication was made on affidavit, and is as follows: "It is ordered that service of summons issued in this action be made by publication in the Standard, a newspaper published at Ogden, in the county of Weber, of said Utah territory, according to the statute made and provided." Dated May 7, 1888. The grounds on which the judgment and subsequent proceedings were set aside are that the order of publication did not direct that a copy of the summons and complaint be sent by mail to the defendant, and did not specify the length of time publication should be made, and, these, being matters of substance, no jurisdiction of the person of defendant was secured, and therefore the judgment and subsequent proceedings are void. The statute (2 Comp. Laws Utah, 241) provides, among other things, that the order of publication shall direct that a copy of the summons and complaint be forthwith mailed to the defendant, if her or his residence is known. It further provides that the summons be published for such length of time as shall be deemed reasonable, and, in case of non-resident defendants, for at least four weeks, and that service shall be complete at the expiration of the time prescribed by the order for publication. As the order did not specify the time of publication, the service never became complete, and the defendant could not be in default until the service was complete, so that the judgment and default thereon are a nullity. This conclusion is axiomatic, and needs no authorities in support.

The other defect in the order of publication is also, as we think, of substance. These provisions are mandatory, and should be strictly followed. They are stricti juris. Ricketson v. Richardson, 26 Cal. 149; Settlemier v. Sullivan, 97 U.S. 444, 24 L.Ed. 1110; Galpin v. Page, 85 U.S. 350, 18 Wall. 350, 21 L.Ed. 959; Forbes v. Hyde, 31 Cal. 342; McMinn v. Whelan, 27 Cal. 300. But it is contended by appellants that this order of publication was afterwards cured by an order nunc pro tunc. If such order was made, it does not appear in the record, and cannot be considered by us. It is also contended that an order could not be set aside after the term expires on motion. It will be remembered that the rights of no third persons had been acquired in this case; for one of the plaintiffs was the purchaser at the sale, and he was bound to take notice of all defects and irregularities. Appellants also say that these defects in the order of publication...