State ex rel. Miller v. District Court of Seventh Dist. in and for Richland County

• Decision Date: 03 November 1947
• Docket Number: 8775.
• Citation: 186 P.2d 506,120 Mont. 423
• Parties: STATE ex rel. MILLER v. DISTRICT COURT OF SEVENTH DIST. IN AND FOR RICHLAND COUNTY et al.
• Court: Montana Supreme Court

186 P.2d 506

120 Mont. 423

STATE ex rel. MILLER v. DISTRICT COURT OF SEVENTH DIST. IN AND FOR RICHLAND COUNTY et al.

No. 8775.

Supreme Court of Montana

November 3, 1947

Rehearing Denied Dec. 2, 1947.

Original proceeding by the State on the relation of Henry A. Miller relator, against the District Court of the Seventh Judicial District of the State of Montana in and for the County of Richland, and the Honorable F. S. P. Foss, Judge thereof, for a writ of supervisory control

Writ denied.

Leif Erickson, of Helena, and C. T. Sanders, of Sidney, for relator.

Milton G. Anderson, of Sidney, for respondents.

ADAIR, Chief Justice.

Original proceeding. Relator Henry A. Miller petitions this court for a writ of supervisory control directing the respondent court and judge to show cause why an order quashing and vacating the summons in Cause No. 5316 should not be annulled.

The action was brought in the district court of Richland county Montana, by relator as plaintiff against the defendant George Chapel to enforce the specific performance of an alleged contract to convey certain described real estate situate in said county. At the commencement of the suit the defendant was not then nor is he now within the state of Montana but being then and now an inhabitant of and within the state of Minnesota. Service of summons was attempted to be made by publication and defendant through counsel appeared specially and challenged the jurisdiction of the court, whereupon the district court ordered the summons and service quashed and set aside on the ground that the action is in personam requiring personal service upon defendant. To an alternative writ issued by this court respondents have interposed a motion to quash and to dismiss the proceedings, thus challenging the correctness of the order made by the district court.

In the well considered case of Silver Camp Mining Co. v Dickert, 31 Mont. 488, 78 P. 967, 67 L.R.A. 940, 3 Ann Cas. 1000, decided December 24, 1904, this court held that in the absence of elements establishing a trust in favor of the plaintiff with respect to land in this state, a suit for specific performance of a contract for the sale thereof is a suit in personam which may be brought only where the defendant resides, or may be legally served with summons; that service by publication, or service personally outside of the state wherein suit is instituted, does not confer jurisdiction upon the court to render judgment against a defendant who appears specially to challenge the jurisdiction of the court and that section 637 of the Montana Code of Civil Procedure of 1895, now sec. 9117, Rev.Codes, providing for the publication of summons has no application to actions in personam but is confined to actions in rem.

Section 9117, Revised Codes of 1935, provides: 'When the person on whom the service of a summons is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons; or when the defendant is a foreign corporation, having no managing or business agent, cashier, secretary, or other officer within the state, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought, and such affidavit also states that a cause of action exists against the defendant in respect to whom the service of the summons is to be made, and that he or it is a necessary or proper party to the action, the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof. The provisions of this section shall apply to all actions and proceedings in which personal service of summons is not required to be made in order to obtain relief, including every action or proceeding commenced in any district court of this state to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance, or lien, or cloud, upon the title of real or personal property within this state.' (Emphasis supplied.)

The italicized portion of the above statute was added to section 637, Montana Code of Civil Procedure of 1895, by the enactment of Chapter 36 of the Laws of 1907.

In Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959, cited with approval by this court in Burke v. Inter-State Savings and Loan Association, 25 Mont. 315, 64 P. 879, 87 Am.St.Rep. 416, the court said: 'When, * * * by legislation of a state, constructive service of process by publication is substituted in place of personal citation, and the court upon such service is authorized to proceed against the person of an absent party, not a citizen of the State nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions.'

In Holt v. Sather, 81 Mont. 442, 264 P. 108, 111, this court said: 'It is the settled judicial policy of this state that more accurate observance, with regard to compliance with provisions of the statutes, is required in constructive service than in personal service; also that less presumption in favor of jurisdiction of a court, upon rendition of judgment, is indulged in when the judgment is based upon constructive service than when based upon personal service.'

Relator urges that the amendment of 1907, by including within its provisions actions to enforce a 'claim to * * * real * * * property within this state,' sec. 9117, permits service of summons to be made by publication in actions such as this to enforce specific performance of a contract to convey real estate, but such contention finds no support in either the decisions of this court nor in those of the federal courts construing like statutory provisions.

The federal statute providing for service by publication upon absent defendants in certain designated actions contains the same language employed in the 1907 amendment to section 637 of the Montana Code of Civil Procedure of 1895, sec. 9117, Rev.Codes of Montana 1935, and provides for such substituted service when the action is brought 'to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district * * * one or more of the defendants therein shall not be an inhabitant of or found within the said district * * *.' Section 8 of the Act of Congress of March 3, 1875, Ch. 137, 18 Stat. 472, sec. 738, Rev.Stat., 28 U.S.C.A. § 118.

In construing the foregoing federal statute in Ladew v. Tennessee Copper Co., C.C., 179 F. 245, 251, affirmed 218 U.S. 357, 31 S.Ct. 81, 54 L.Ed. 1069, the court said that, 'it appears from the concluding portion of this section that it relates extirely to suits of which property is the 'subject,' and as the words 'claim to * * * property' are evidently used in contrast to liens or encumbrances upon property and are the only words in the section under which a claim to the direct ownership of property may be included, there words relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest, or other direct right or claim to the property itself, such, for example, as the claim of ownership of an undivided interest in the property upon which a suit for partition may be based (Greeley v. Lowe, 155 U.S. 58-74, 15 S.Ct. 24, 39 L.Ed. 69), and do not include the assertion of a right which is not based upon in interest in the properly itself, * * *.'

Municipal Inv. Co. v. Gardiner, CC., 62 F. 954, holds that a suit to enforce the specific performance of a contract to convey land is an action in personam wherein the above federal statute does not authorize substituted service by publication of summons. This case was followed in Dan Cohen Realty Co. v. National Savings & Trust Co., 6 Cir., 125 F.2d 288. See also Kansas Gas & Electric Co. v. Wichita National Gas Co., 8 Cir., 266 F. 614; Vidal v. South American Securities Co., 2 Cir., 276 F. 855.

In Thrift v. Thrift, 54 Mont. 463, 171 P. 272, decided February 27, 1918, this court held that it is now well settled that in an action in personam decree cannot be rendered upon substituted service alone. Citing Silver Camp Mining Co. v. Dickert, supra, and Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

In Winnett Times Pub. Co. v. Berg, 82 Mont. 141, 265 P. 710, 711, decided March 27, 1925, the plaintiff, charging fraud, brought suit to compel the defendant to surrender for cancellation certain notes executed by plaintiff to defendant in part payment of a printing plant and equipment located at Winnett, Montana, the notes being secured by a chattel mortgage on the property. Service of summons was made upon the defendant by publication. Failing to appeal defendant's default was entered and judgment rendered against him. In reversing the judgment this court held that the action was in personam; that substituted service of summons did not give the court jurisdiction to enter the judgment and that section 9117, Revised Codes, 'does not abrogate the rule of the common law which requires personal service of the summons in actions in personam.' See also Gassert v. Strong, 38 Mont. 18, 98 P. 497; Hinderager v. MacGinniss, 61 Mont. 312, 202 P. 200; State ex rel. Kelly v. District Court, 73 Mont. 84, 235 P. 751; Atlantic Seaboard Natural Gas Co. v. Whitten, 315 Pa. 529, 173 A. 305, 93 A.L.R. 615; 42 Am.Jur., 'Process,' pages 63-78, sections 75-88.

A careful examination of the cases cited by relator as holding that service may be made by publication in actions for specific performance of a contract to convey real property reveals that such decisions were based upon statutes containing quite different language from that employed in our statute, hence they do not aid us in...