Ryken v. State, 13004

• Decision Date: 26 November 1980
• Docket Number: No. 13004,13004
• Citation: 305 N.W.2d 393
• Parties: Norma Mae RYKEN et al., Plaintiffs and Appellees, v. The STATE of South Dakota et al., Defendants, and E. W. Boyles, Elloween G. Boyles and Frank Biegelmeier, Defendants andAppellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 393

305 N.W.2d 393

Norma Mae RYKEN et al., Plaintiffs and Appellees, v. The STATE of South Dakota et al., Defendants, and E. W. Boyles, Elloween G. Boyles and Frank Biegelmeier,

Defendants andAppellants.

No. 13004.

Supreme Court of South Dakota.

Considered on Briefs Nov. 26, 1980.

Decided May 6, 1981.

John R. Kabeiseman of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for plaintiffs and appellees.

Robert W. Hirsch of Goetz, Hirsch, Haar & Klimisch, Yankton, for defendants and appellants.

HENDERSON, Justice.

ACTION

This appeal stems from an uncontested quiet title judgment entered in Yankton County. Appellants E. W. Boyles and Elloween G. Boyles (Boyles) appeal from the trial court's order denying Boyles' motion to vacate this judgment in favor of appellees Norma Mae Ryken, John M. Ryken, and Lester L. Ryken (Rykens). Appellant Frank Biegelmeier (Biegelmeier) filed a motion in joinder pursuant to SDCL 21-14-6. The trial court entered an order likewise denying this motion, from which Biegelmeier appeals. We reverse and remand for a determination on the merits of the quiet title action for the reasons outlined below.

FACTS

On April 28, 1977, Rykens obtained a judgment from the trial court quieting title to certain real property located in Yankton County, South Dakota. Prior to this judgment, Rykens caused a publication of a summons to be made in a Yankton newspaper. Boyles and Biegelmeier were treated as unknown defendants. Rykens contend that they followed this procedure due to their inability to discover any filings or cross-indexings in the applicable public records which reflected any color of title conflicts with respect to the realty in question.

Approximately one year after the quiet title judgment was entered, Boyles filed a motion pursuant to SDCL 15-6-60(b) to vacate the trial court's judgment of April 28, 1977. Said motion was accompanied by affidavits from E. W. Boyles and Robert Johnson, an engineer and land surveyor. Soon thereafter, Biegelmeier also filed an affidavit and moved to join the motion of Boyles. Both Boyles and Biegelmeier stated in their affidavits that the land claimed by Rykens encroaches upon land in which they have an interest. A hearing on these motions was held October 5, 1978, whereat Boyles and Biegelmeier were represented by the same counsel. The issue at this hearing was whether Boyles and/or Biegelmeier were entitled to receive personal service as to the April 1977 quiet title action. After Boyles and Biegelmeier had submitted a joint brief, the trial court denied their motions and ruled that the judgment of April 28, 1977, was valid and binding per court order of October 25, 1979. In its conclusions of law, the trial court stated that a diligent search of the records in the offices of the Yankton County register of deeds, county auditor, and county treasurer could not have produced the names of E. W. Boyles or Elloween G. Boyles as interested property owners. The trial court further concluded that no record of any conflicting property ownership as to Biegelmeier could have been ascertained from the Yankton County register of deeds prior to the initiation of the quiet title action. Boyles and Biegelmeier subsequently filed a joint notice of appeal on December 12, 1979.

ISSUE

Appellees having proceeded by publication and not by personal service, did the trial court err in denying Boyles' and Biegelmeier's motion to relieve them from the trial court's final judgment of April 28, 1977? We hold that it did.

DECISION

Boyles and Biegelmeier timely filed a motion pursuant to SDCL 15-6-60(b)(1)(4) and (6) for relief of the trial court's judgment quieting title in the name of Rykens. SDCL 15-6-60(b)(1)(4) & (6) states:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

. . . .

(4) The judgment is void;

. . . .

(6) Any other reason justifying relief from the operation of the judgment.

Boyles and Biegelmeier contend that they were not properly served with process regarding the April 1977 quiet title action; thus, the trial court was acting without proper jurisdiction and its judgment quieting title in favor of Rykens should be rendered void. Johnson v. Bruflat, 45 S.D. 200, 186 N.W. 877 (1922). In support of their position, Boyles and Biegelmeier rely on SDCL 21-41-5, which states in pertinent part:

(In a quiet title) action all persons who have or claim to have or who appear of record to have ever had any interest or estate in, claim to, or lien or encumbrance upon the premises described in the summons and complaint or any part thereof ... may be made defendants by name, if known.

See also SDCL 21-41-1. Also relevant is SDCL 15-9-7, which provides:

Where the person on whom the service of the summons, writ, order, or decree is to be made cannot, after due diligence, be found ... (the) court or judge may grant an order that the service be made by publication.

It is this Court's task to determine whether the trial court's ruling that Boyles and Biegelmeier were not required to receive personal service prior to the April 1977 quiet title judgment was clearly erroneous. SDCL 15-6-52(a). The question, when reduced to its essence, is whether Rykens exercised due diligence in attempting to discover any recorded interest Boyles and Biegelmeier might have had in the realty involved.

The test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties. Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961). In Coughran v. Markley, 15 S.D. 37, 40-41, 87 N.W. 2, 3 (1901), this Court stated:

Judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. There should be either actual notice, or an honest and reasonable effort to give it.

In this state, the due diligence standard is applicable to quiet title actions. Berry v. Howard, 33 S.D. 447, 146 N.W. 577 (1914); Grigsby v. Wopschall, 25 S.D. 564, 127 N.W. 605 (1910). Whether a party has exhausted all reasonable means available for locating interested parties must be determined by the circumstances of each particular case. Cone v. Ballard, 68 S.D. 593, 5 N.W.2d 46 (1942).

We now turn to the circumstances of this particular case, dealing with each appellant separately. Boyles' interest in the realty stems from a warranty deed from Florence J. Edmunds and Harold E. Edmunds dated October 2, 1969. Filed and recorded with the Yankton County register of deeds on November 4, 1971, this deed conveyed to Boyles:

The South half of Lot five, and all of Lots Six, Seven and Eight, Block forty-two, in that part of the city of Yankton, platted and known as J.W. Glazier's Addition

and

Outlot 22 of County Auditor's Plat of Outlots, in the city of Yankton, as platted in Book G, page 28 and

All interest grantors may have in all that land south of and adjacent to said Lot eight and Outlot 22 above described, beyond the River Bluff.

Rykens do not deny that this deed was on record at the time of the initiation of the quiet title proceedings. It is argued by Rykens, however, that it was impossible to tell from the record books maintained by the register of deeds whether or not the realty involved in the quiet title action included realty claimed by Boyles. The crux of the dispute stems from the last line of the warranty deed conveyed to Boyles: "All interest grantors may have in all that land south of and adjacent to said Lot eight and Outlot 22 above described, beyond the River Bluff." The realty involved in the quiet title action is located directly south of Lot eight, bordering the Missouri River. This realty is unplatted...