Phillips Petroleum Co. v. Moore

• Decision Date: 05 May 1956
• Docket Number: No. 39952,39952
• Parties: The PHILLIPS PETROLEUM COMPANY, a Corporation, Appellee, v. Lilly MOORE et al., Iva P. Dobbs and the Board of County Commissioners of Sheridan County, Kansas, Appellants.
• Court: Kansas Supreme Court

Page 183

297 P.2d 183

179 Kan. 482

The PHILLIPS PETROLEUM COMPANY, a Corporation, Appellee, v. Lilly MOORE et al., Iva P. Dobbs and the Board of County Commissioners of Sheridan County, Kansas, Appellants.

No. 39952.

Supreme Court of Kansas.

May 5, 1956.

Rehearing Denied June 13, 1956.

Syllabus by the Court

1. An affidavit for service by publication filed as provided by G.S.1949, 60-2526, followed by publication of a notice of summons in accordance with G.S.1949, 60-2527, which are, on examination, approved by the district court as required by G.S.1949, 60-2528, confer jurisdiction upon the court to hear and determine all issues in the action in which such service is made and a judgment rendered therein is valid and unimpeachable unless assailed for cause within the time prescribed by law, even though the affidavit for service by publication was willfully false and the defendant ignorant of the pendency of the action and made no appearance therein.

2. Neither the due process clause of the federal Constitution, nor § 2 of the Bill of Rights of the Kansas Constitution are violated when service by publication is obtained upon a foreign corporation in conformity with G.S.1941 Supp. 79-2801 and G.S.1949, 60-2525 et seq. and publication of a notice of summons in accordance with such statutes is such as to be reasonably calculated to apprise the foreign corporation of the pendency of the action in which service by publication is had and affords it an opportunity to defend.

3. G.S.1941 Supp. 79-2801 et seq. since amended, is a complete and independent code for the collection of taxes levied and assessed upon real estate, having a separate and distinct judicial proceeding in which its own procedures and limitations are prescribed, and a tax foreclosure action instituted thereunder is a proceeding in rem.

4. Where a district court in a tax foreclosure action has acquired jurisdiction of the parties shown by the record to have any interest or title in real estate to be affected, and a petition in such action alleges taxes are unpaid and such real estate has been sold and bid in at a delinquent tax sale, a question of fact is alleged, and, if the owner claims no tax is unpaid, it is a matter of defense which should be pleaded to be available. If such defense is not presented and the district court renders judgment for the amount of the taxes alleged to be unpaid, together with interest, charges and penalties against the real estate described, such judgment is final and conclusive unless corrected or modified on appeal, or by such other method as may be prescribed by the statute, and it cannot be collaterally attacked otherwise.

5. The cases of Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P.2d 133; Magnolia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P.2d 127; Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P.2d 925, and Board of County Comm'rs of Montgomery County v. Allen, 175 Kan. 460, 264 P.2d 916, insofar as they are inconsistent with the rule announced in paragraph four of the syllabus, are hereby overruled.

6. An action to cancel and set aside a sheriff's deed and to quiet plaintiff's title to certain mineral interests is examined, considered and held: Not being commenced within six months from the date of confirmation of the sale of real estate in a tax foreclosure action it was brought too late, and the district court erred in overruling defendants' demurrers.

Alex M. Fromme, Hoxie, argued the cause, and Joseph W. Fromme, County Atty., Hoxie, was with him on the briefs, for appellants.

Earl Hatcher, Topeka, argued the cause, and D. A. Hindman and Stanley Krysl, Stockton, and Rayburn L. Foster, Harry D. Turner, Robert B. Burgess and James G. Williams, Jr., Bartlesville, Okl., were with him on the briefs, for appellee.

FATZER, Justice.

This appeal is from an order overruling defendants' demurrers to plaintiff's petition seeking to cancel and set aside a sheriff's deed issued November 16, 1943, and to quiet plaintiff's title to certain mineral interests in Sheridan County. The principal matter in controversy was the force and effect of a judgment, sale, and sheriff's deed in a previous tax foreclosure action authorized by G.S.1941 Supp. 79-2801 et seq., then in force and effect, covering the real estate.

The record discloses the following: On December 18, 1942, the board of county commissioners of Sheridan County instituted a tax foreclosure action in the district court of Sheridan County entitled 'Board of County Commissioners of Sheridan County v. Albert H. Acre, et al,' case No. 3700, Board of County Comm'rs of Sheridan County v. Acre, 160 Kan. 278, 160 P.2d 250, to foreclose tax liens on mineral interests in several hundred tracts of land including the mineral interests of plaintiff (hereinafter referred to as Phillips) involved in this proceeding. Personal service of summons was not had upon Phillips. Thereafter, and upon the affidavit of the county atttorney, service by publication was obtained on Phillips, which was approved by the district court. On September 16, 1943, no appearance having been made by Phillips, the district court, upon due consideration, rendered judgment for the plaintiff foreclosing its tax lien upon the property in question. On September 27, 1943, the district court issued an order for the sale of the real estate. Notice of the sale was given, and at the sheriff's sale held on November 10, 1943, the real estate was sold to Lilly Moore. The sale was confirmed, and under date of November 16, 1943, a sheriff's deed to the real estate was executed and delivered to Lilly Moore. The deed was filed in the office of the register of deeds on November 22, 1943, and recorded in book 97, page 602. Thereafter Lilly Moore conveyed the real estate to Iva P. Dobbs.

On February 23, 1954, the action out of which this appeal arises was commenced by Phillips filing a petition in which certain parties, including Iva P. Dobbs and the board of county commissioners of Sheridan County, appellants here (hereinafter referred to as defendants) were made defendants. The petition alleged Phillips was a Delaware corporation with an operating office in Bartlesville, Oklahoma, and was authorized to do business in Kansas as a foreign corporation; that on May 31, 1935, the then owner of real estate executed and delivered to it a deed to an undivided one-half mineral interest in and under the Southeast Quarter (SE 1/4) Sec. six (6) Township eight (8) South, Range thirty (30) West, Sheridan County, which was filed for record December 8, 1935; that since that date Sheridan County had duly assessed and levied taxes against its real estate, which it promptly paid, for each year including 1942 and that no taxes were delinquent on December 18, 1942, the date the foreclosure action was filed; that it was the owner of the legal and equitable title to and in the quiet and peaceful possession of an undivided one-half interest in and to all the oil, gas and other minerals in and under the real estate described; that defendants claimed some right, interest or title therein, with other allegations pertinent to a quiet title action; that the official records of Sheridan County reflected its correct address on December 18, 1942; that it had, at all times since its admission to do business in Kansas, maintained a duly registered agent upon whom process might be served; that personal service of summons could at all times have been obtained upon its registered agent or upon the Secretary of State as provided by law; that the affidavit of the county attorney to obtain service by publication knowingly and falsely stated that personal service of summons could not be had upon it; that no process or service of summons had been made upon it except by publication; that it had no actual notice of the tax foreclosure action until June 12, 1952, and that, by the exercise of reasonable diligence, it did not discover the fraud of defendants until sometime thereafter.

Phillips further alleged that the judgment entered in cause No. 3700 on September 16, 1943, and all proceedings taken thereunder were void for three reasons: (1) There were no taxes due and unpaid on the real estate described at the time the tax foreclosure action was instituted and the mineral interests foreclosed, and the district court did not acquire jurisdiction of the real estate; (2) the affidavit for service by publication knowingly and falsely alleged that personal service could not be had upon Phillips, and the district court did not acquire jurisdiction over Phillips by reason of such fraud; and (3) service by publication upon Phillips was unauthorized since it maintained a registered office in Kansas and had a registered agent upon whom personal service could be had, including personal service of summons upon the Secretary of State; that if the manner of service of summons by publication was authorized by statute, the statute was unconstitutional and void as denying due process of law since a reasonable method of notification calculated to give knowledge of the proceedings as required by the constitution of the United States, was not required or given. The prayer was that the defendants be required to set up their claim; that Phillips be declared the owner in fee simple of the real estate described; that the defendants be barred, and that Phillips' title be quieted.

Before discussing the questions here presented, we direct attention to the statute in effect during 1942 when the tax foreclosure action was filed, which is G.S.1941 Supp. Ch. 79, Art. 28. References are to the chapter and article of that statute except as are expressly noted. We pause to say this chapter and article have since been amended in several respects.

Defendants' specification of error is that the trial court erred when it overruled their demurrers. We note here both parties contend in the district court and in this court that the issues involved were: (1) Does ...