Sink v. Squire, 88-479

• Decision Date: 30 March 1989
• Docket Number: No. 88-479,88-479
• Citation: 46 St.Rep. 352,236 Mont. 269,769 P.2d 706
• Parties: Yvonne SINK, Plaintiff and Appellant, v. Robert G. SQUIRE and Judith M. Squire, Defendants and Respondents.
• Court: Montana Supreme Court

Page 706

769 P.2d 706

236 Mont. 269

Yvonne SINK, Plaintiff and Appellant, v. Robert G. SQUIRE and Judith M. Squire, Defendants and Respondents.

No. 88-479.

Supreme Court of Montana.

Submitted on Briefs Jan. 12, 1989.

Decided Feb. 27, 1989.

Rehearing Denied March 30, 1989.

Jack Yardley, Yardley & Yardley, Livingston, for plaintiff and appellant.

Chester Lloyd Jones, Jones & Hoffman, Virginia City, for defendants and respondents.

GULBRANDSON, Justice.

Appellant Yvonne Sink appeals from the dismissal by the Fifth Judicial District Court, Madison County, of her action to set aside the previous judgment of the court in Civil Action No. 7448 for lack of jurisdiction due to improper service. The court by its dismissal upheld its previous judgment awarding a tax deed to respondents. We reverse the court's dismissal and order the tax deed awarded in the prior action set aside as void for lack of jurisdiction.

Appellant raises the following issues on appeal:

1. Did the publication of the summons for publication without a court seal amount to an improper service thereby denying the District Court jurisdiction over the tax deed action?

2. Did the respondents fail to exercise due diligence to determine appellant's current place of residence prior to mailing the summons for publication and complaint to the incorrect address?

The appellant Yvonne Sink, together with her husband James Sink, purchased a 10.293 acre lot in Madison County from The Shining Mountains North (a limited partnership) in the mid 1970's. Thereafter, Yvonne and James separated. She then moved from Anchorage, where she had been living with her husband prior to their separation, to the San Francisco Bay area. Upon separation, they orally agreed that Yvonne would make the regular payments on the property while James would pay the property taxes. Yvonne continued to make payments on the property until 1983. At that time the balance owing on the property was paid in full, and she and her estranged husband received a warranty deed to the property from Shining Mountains. James Sink subsequently conveyed his interest in the property to Yvonne by a quitclaim deed dated on March 9, 1987. Shining Mountains remained the owner of record, however, because Yvonne failed to record her deed with the Madison County Clerk and Recorder's Office. Yvonne testified she was unaware of any requirement to record her ownership before she herself sold the property.

Although Yvonne diligently made payments until the amount owing on the property was paid in full, James Sink failed to pay the taxes assessed on the property. Consequently, the Treasurer of Madison County (County Treasurer) issued a Certificate of Tax Sale on July 22, 1981 for failure to pay the $91.40 in taxes assessed against the property in 1980. Yvonne testified she received no actual notice of these delinquent taxes.

On March 26, 1985, the respondents, Robert and Judith Squire, paid all the taxes, penalties, and interest assessed and outstanding against the property from 1980 to date. The total paid amounted to $609.71. The County Treasurer thereafter assigned the Tax Sale Certificate to them. The Squires then instituted Civil Action No. 7448 against Yvonne and James Sink in order to acquire a tax deed to the property.

The Sheriff stated by way of a Sheriff's Return (which erroneously failed to name the parties and to give the date the Sheriff was unable to locate them) that he was unable to locate the Sinks in Madison County, and thus he could not serve the complaint and summons upon them. The Squires' attorney then filed an affidavit requesting an order for service of summons by publication. The Clerk of Court granted this requested order and issued a summons for publication on April 26, 1985. This summons failed to list the name or address of the plaintiffs' attorney. The attorney for the plaintiffs signed an affidavit attesting to the mailing of a copy of this summons for publication.

A second summons for publication later was signed on May 2, 1985 and then published for three consecutive weeks in the Madisonian, a local county newspaper. This latter published summons correctly listed the name and address of the plaintiffs' attorney and contained the Clerk of Court's signature, although it did not have a court seal. The plaintiffs, however, did not mail this legally correct May 2nd version to Yvonne and James Sink at their last determined address in Homer, Alaska.

Defendants failed to appear or answer the summons within the twenty day period following service of the summons. The District Court then entered a default judgment against the Sinks on June 18, 1985 and issued a tax deed to the Squires. When Yvonne Sink subsequently learned of this default judgment, she filed the instant action requesting the District Court to declare the default judgment in Civil Action No. 7448 void for lack of jurisdiction because of improper service upon defendants. The District Court ruled that the plaintiffs substantially complied with the spirit and purpose of the service requirements and that the court therefore had jurisdiction over Civil Action No. 7448. Consequently, the District Court dismissed the present case. Yvonne Sink appeals from the court's determination that jurisdiction existed in Civil Action No. 7448 and from the court's subsequent dismissal of this case.

At the outset, we note that the most egregious error affecting the jurisdiction of the District Court to hear this case was the plaintiffs'...