Ross v. Thompson, Case Number: 25674
| Citation | 50 P.2d 385,1935 OK 993,174 Okla. 183 |
| Decision Date | 15 October 1935 |
| Docket Number | Case Number: 25674 |
| Parties | ROSS, Adm'r, et al. v. THOMPSON et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. PROCESS--SERVICE BY PUBLICATION--Service Void Where Copy of Petition and Publication Notice Mailed to Two Defendants Jointly.
Where one copy of the petition, with copy of the publication notice attached is addressed and mailed to two defendants jointly at the same address, the service is void as to both, and there is no other service than by publication.
2. SAME--Service on Unknown Claimants to Real Estate--Statute Construed.
Section 184, O. S. 1931, providing for service by publication on unknown claimants to real estate, does not apply to parties whose names and claimed interest may be ascertained from the records of the county in which the land is situate, nor may persons in possession of the land be served by publication under its provisions.
3. SAME--Diligence Required of Plaintiff to Ascertain Whether Defendants Living or Dead and Names and Whereabouts of Heirs.
Before a plaintiff may resort to service by publication on unknown owners of realty, or sue defendants by name, if living or if dead, their heirs, etc., due diligence must be exercised to ascertain whether defendants so sued are living or dead, and if dead, the names and whereabouts of their heirs. Lack of diligence on the part of plaintiff may be shown on application to open a judgment against such persons based on service by publication.
4. APPEAL AND ERROR--Counsel Bound by Declaration at Trial That Only Certain Question Involved.
Where counsel declares that only a certain question is involved in a case, he is bound thereby, and other questions cannot be raised in the appellate court.
5. SAME--Change of Theory of Case on Appeal not Permissible.
A party may not try his case on one theory in the trial court and then change in the Supreme Court and prevail upon another theory.
Appeal from District Court, Oklahoma County; Jesse J. Worten, Assigned Judge.
Petition by Henrietta Ross, administratrix, and others to open default judgment in favor of T. G. Thompson, rendered on publication service. From judgment sustaining a demurrer to petitioners' evidence, and refusing to open the judgment, they appeal. Reversed and remanded.
Loyal J. Miller and Bliss Kelly, for plaintiffs in error.
Snyder, Owen & Lybrand, for defendants in error.
¶1 G. G. Ross and Emma Ross, the record owners of certain town lots in Oklahoma county, died, and in June, 1930, the county court of Oklahoma county, appointed W. J. Edwards administrator of their estates. In November, 19319, his letters were revoked and Henrietta Ross was appointed in his stead. The rentals from this property were collected by the A. F. Bond Rental Agency and by it turned over to Ed. wards from the time of his appointment until the date of the judgment involved herein, and indeed it appears that some of the rentals were collected and credited to the Ross estate after the date of the judgment. The original plaintiff in the quiet title suit did not collect any rentals until after the date of the judgment. His counsel said "There is no question about that."
¶2 On February 16, 1931, T. G. Thompson fled suit in the district court of Oklahoma county, Okla., to quiet his title to this and other property. Among others, he named as defendants G. G. Ross, Henrietta Ross Emma Ross, and L. R. Ross, and in the caption added, "if any one or more of said persons named as defendants be dead, then to the unknown heirs," etc. Plaintiff's affidavit for publication states that with due diligence he was unable to make service of summons on G. G. Ross, Henrietta Ross, Emma Ross, L. R. Ross, and others, and with due diligence was unable to ascertain whether or not G. G. Ross, Emma Ross. and certain others are living or dead, and as to those who are dead, he was unable to ascertain the names, etc., of their heirs. The addresses of Henrietta Ross and L. R. Ross are stated as No. 327 Beale street, Memphis, Tenn. The affidavit of mailing states that a copy of the petition, with publication notice attached, was mailed to "Henrietta Ross and L. R. Ross, 327 Beale street, Memphis, Tennessee."
¶3 On April 10, 1931, a judgment by default was rendered against the defendants Ross and others.
¶4 On April 8, 1933, Henrietta Ross, individually, and as administratrix, filed a petition to vacate the judgment. L. R. Ross joined in the petition. Thompson, the original plaintiff, and others answered the petition, which came on for hearing, and at the conclusion of the petitioner's evidence the trial judge sustained a demurrer thereto. This proceeding is brought to reverse his decision.
¶5 At the hearing in the court below, it appeared that Thompson's title rests on a tax deed obtained shortly before he instituted suit. His notice of intention to apply for the deed was served on the tenant in possession and on the A. F. Bond Rental Agency, by the sheriff of Oklahoma county, who stated in the return that G. G. Ross was dead.
¶6 To sustain the judgment of the trial court. it is urged that since copies of the petition find notice by publication were mailed to the defendants Henrietta Ross and L. R. Ross, there was "other service than by publication'' within the purview of section 189, Okla. Stat. 1931, so that they are not entitled to have the judgment opened. Lynch v. Collins, 106 Okla. 133, 233 P. 709. But since the affidavit of mailing discloses that a copy of the petition and publication notice was addressed to L. R. Ross and Henrietta Ross jointly at 327 Beale street, Memphis, Tennessee, the service is void as to both. (Stumpff v. Price, 74 Okla. 117, 177 P. 109.) Instead of there being service other than by publication there was no service at all. If the judgment of the trial court is to be sustained, it must be on some other ground.
¶7 An entirely different situation is presented, as to Henrietta Ross, as administratrix of the estates of G. G. Ross and Emma Ross. Her predecessor in office was not made a party to the suit. The only showing in the record to excuse his nonjoinder appears in the affidavit for publication as heretofore set out. Thompson must have known the names of the...
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