Rae v. Morgan

• Decision Date: 12 June 1928
• Citation: 125 Or. 644,267 P. 1072
• Parties: RAE v. MORGAN ET UX.
• Court: Oregon Supreme Court

267 P. 1072

125 Or. 644

RAE v. MORGAN ET UX.

Supreme Court of Oregon

June 12, 1928

Department 1.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

On petition for rehearing. Petition denied.

For former opinion. see 266 P. 1069.

J. C Rutenic, of Klamath Falls (Rutenic & Yaden, of Klamath Falls, on the brief), for appellant.

Henry E. Perkins, of Klamath Falls (R. C. Groesbeck, of Klamath Falls, on the brief), for respondents.

ROSSMAN J.

In their petition for a rehearing counsel for respondents earnestly urge upon our attention once more the case of Bagley v. Bloch, 83 Or. 618, 163 P. 425. This case received our careful consideration when we wrote our previous decision (266 P. 1069), but we felt that the distinction between the circumstances of that case and the one now before us was sufficiently apparent so as to need no comment. In Bagley v. Bloch, it does not appear from the facts stipulated, nor from anything in the decision, that the defendant in the tax certificate foreclosure proceeding was "the person or persons appearing on the latest tax roll in the hands of the sheriff for collection at the date of the first publication of such summons"; but from the decision it appears that Bagley was the defendant. The stipulation recites that Melchior Kehrli and George H. Blyth were the persons appearing on the latest tax roll when the first publication of the summons was published. They were, therefore, the individuals whom the statute designated should be made the defendants in the delinquent tax certificate proceedings. Nothing in the decision, the stipulation, nor the abstract of record which we have examined, indicates that they were the defendants. But as previously stated Bagley was made the defendant. He, however was not personally served with a summons. Apparently he was the actual owner of the property when the foreclosure proceedings were instituted, while in our case the respondents were not the owners, but were installment buyers. In Bagley v. Bloch we therefore have as the defendant some one other than the statutory party. In our present case the defendant was the individual who appeared on the latest tax roll in the hands of the sheriff for collection at the date of the first publication of summons. He was a nonresident of the state and substituted service upon him was therefore essential and proper. Subsequent to Bagley v. Bloch the statutory provisions setting forth the manner of foreclosure of tax delinquent certificates were amended. Thus 1923 Session Laws, c. 276, inserts after the words "for the purpose of this section," the following: "And in all foreclosures by a county" summons may be served and notice given exclusively by publication. In a subsequent sentence an amendment adds:

"Such summons or notice shall be published once a week for six consecutive weeks, and it shall not be necessary to mail any copy of such summons or application to any defendant named or any person interested in any of the property described therein in any such county foreclosure."

Next as the statute proceeds to set forth that the person or persons appearing on the latest tax roll in the hands of the sheriff for collection shall be the proper defendant, the amendments add that such individuals shall be the defendants in "all foreclosures by counties," and then, in order to make clear the fact that the foreclosures are proceedings in rem, the amendments insert into the previous enactments:

"And said proceedings shall be and be deemed and considered a proceeding in rem against the property itself."

Thus since Bagley v. Bloch the statute has been amended so as to point out clearly that in all foreclosures by a county the summons shall be served by publication, and the person appearing upon the latest tax roll shall be the defendant, and the proceedings shall be deemed in rem.

The above amendments evidently were intended, among other things, to set forth that the Legislature was endeavoring to point out a distinction between foreclosures by counties and foreclosures by individuals. In our neighboring state of Washington, whose statutes are the source from which we obtained ours, the foregoing distinction has been recognized. Patterson v. Toler, 71 Wash. 535, 129 P. 107; Merges v. Adams, 137 Wash. 208, 242 P. 43. In Noble v. Aune, 50 Wash. 73, 96 P. 688, which is referred to with approval in Merges v. Adams, supra, the Washington Supreme Court said:

"We recognize a clear distinction between a foreclosure by a county and one by an individual."

We thus have as our defendant in the tax delinquency certificate proceeding the individual designated by the statute. He was a nonresident and was served in the manner provided by statute. In Coy v. Title Guarantee & Trust Co., 257 F. 571, the district court for the district of Oregon in referring to the Oregon statutes held:

"The statute having prescribed the rule by which interested parties shall be ascertained, the proceeding will not be rendered

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