Stumpff v. Price
| Decision Date | 10 December 1918 |
| Docket Number | Case Number: 9455 |
| Citation | 74 Okla. 117,1918 OK 710,177 P. 109 |
| Parties | STUMPFF et al. v. PRICE. |
| Court | Oklahoma Supreme Court |
¶0 1. Process--Service by Publication--Copy of Petition.
Section 4724, Rev. Laws 1910, which provides, where service by publication is proper, a copy of the petition, with a copy of the publication notice attached thereto, shall within six days after the first publication is made, be inclosed in an envelope addressed to the defendant at his place of residence or business, postage paid, and deposited in the nearest post office, unless the plaintiff shall make and file an affidavit that such residence or place of business is unknown to him, and cannot be ascertained within any means of his control, is mandatory, and must be strictly complied with.
2. Same.
In such a case where there are two nonresident defendants, a copy of the petition and publication notice addressed to them jointly at their place of residence is an insufficient compliance with the statute, as the same, at best, shows service only upon one of the defendants and the uncertainty upon which of them service is had renders the publication service prima facie void as to both, for the court did not acquire jurisdiction.
3. Judgment--Void Judgment--Vacation--Motion.
Under section 5274, Rev. Laws 1910, a void judgment may be vacated at any time on motion of a party affected thereby, and it is unnecessary in said motion filed for said purpose to set up a meritorious defense.
Error from District Court, Osage County; R. B. Boone, Judge.
Suit by F. B. Price against Florence H. Stumpff and another. Judgment against defendants by default, and after a foreclosure sale and deed defendants' amended motion to set aside the judgment, sale, and deed was overruled, and they bring error. Reversed and remanded, with directions to enter a judgment vacating the judgment.
H. C. Hargis and Fulton, Shirk & Danner, for plaintiffs in error.
Gray & Miller and G. K. Sutherland, for defendant in error.
¶1 On June 8, 1916, F. B. Price instituted suit in the district court of Osage county against Florence Stumpff and James H. Stumpff, and attempted to procure service by publication. The affidavit filed for the purpose of obtaining said service stated that said defendants below were residents of the state of California and nonresidents of the state of Oklahoma, and gave their last- known post office address. No appearance was made by them, and on August 21, 1916, judgment was rendered against them by default for the amount of the note sued for and for a foreclosure of the mortgage.
¶2 Thereafter, on October 16th an order of sale was issued to the sheriff of said county, who sold the mortgaged premises to the plaintiff below, which sale was duly confirmed on October 21, 1916, and a deed made to the property.
¶3 Thereafter, on June 26, 1917, the plaintiffs in error filed an amended motion to vacate and set aside the judgment and order of sale and the sheriff's deed, on the ground that the trial court never had jurisdiction over the person of the plaintiffs in error, or either of them, for the reason that, although their address was well known to the plaintiff below, she had failed and neglected to mail to them a copy of the publication notice and a copy of the petition filed below within six days after the date of the first publication of said notice or at any time thereafter. Proper service of this motion was duly had upon the plaintiff below, and the same thereafter came on to be heard, and the trial court, after the introduction of the evidence, overruled the motion and refused to vacate the judgment, to which ruling the defendants below excepted, and have appealed here.
¶4 The evidence disclosed that the plaintiffs in error never received copies of the petition and publication notice, and it is conceded that no proof of mailing the notice was ever made or filed. The attorney for the plaintiff below who instituted the action testified that within six days after the date of the first publication he inclosed in one envelope one copy of the publication notice and two copies of the petition, sealed the same, and addressed it to the defendants below at their last-known post office address.
¶5 It is an admitted fact here that separate copies of the publication notice and of the petition were not mailed to each of said plaintiffs in error, but to them jointly as Florence H. Stumpff and James H. Stumpff at 1330 Portia St., Los Angeles, Cal. Some evidence was introduced seeking to show that James H. Stumpff had actual knowledge of the pendency of said action, yet the same is indefinite, and is not sufficient to show knowledge prior to the rendition of the judgment.
¶6 Evidence was also introduced that one Hargis, an attorney who had formerly represented the plaintiffs in error, had knowledge of the pendency of this action, and had agreed to file a pleading for them therein, but his undisputed testimony is to the effect that he was not employed and had no authority whatever to file any pleading for them.
¶7 Section 4724, Rev. Laws 1910, provides that:
"Where service by publication is proper a copy of the petition, with copy of the publication notice attached thereto, shall, within six days after the first publication is made, be inclosed in an envelope addressed to...
To continue reading
Request your trial
-
Weimer v. Augustana Pension & Aid Fund
...judgments where no such or similar recitations or findings are contained. Locke v. Gilbert, 133 Okla. 93, 271 P. 247, and Stumpff v. Price, 74 Okla. 117, 177 P. 109. Likewise, these are distinguishable from cases involving service of notice of application for a tax deed by publication, as i......
-
Vinson v. Okla. City
...130 Okla. 249, 266 P. 777; Samuels v. Granite Savings Bank & Trust Co. (1931) 150 Okla. 174, 1 P.2d 145. ¶6 The cases of Stumpff v. Price (1919) 74 Okla. 117, 177 P. 109, and Dow v. Cowley-Frye Lumber Co. (1926) 119 Okla. 60, 247 P. 1109, holding the judgment void, are not in conflict with ......
-
Harper v. Stumpff
...the district court was reversed and said judgment was vacated for want of jurisdiction of the parties defendant. See Stumpff v. Price, 74 Okla. 117, 177 P. 109. The prayer in the answer of defendant Price is as follows:"Wherefore, this answering defendant prays that the court set and appoin......
-
Gregg v. Leach
...by the statute. Dow v. Cowley-Frye Lbr. Co., 119 Okla. 60, 247 P. 1109; Locke v. Gilbert, 133 Okla. 93, 271 P. 247; Stumpff et al. v. Price, 74 Okla. 117, 177 P. 109; Lynch v. Collins, 106 Okla. 133, 233 P. 709. ¶11 However, in this connection the defendant contends that, as there is an aff......