Weber v. Williams

• Decision Date: 14 April 1958
• Docket Number: Nos. 18178,18179,s. 18178
• Parties: Marie G. WEBER, Plaintiff in Error, v. Stanley A. WILLIAMS, Esther Williams, Fairman Wallace Taber, also known as F. Wallace Taber, Defendants in Error.
• Court: Colorado Supreme Court

Page 365

324 P.2d 365

137 Colo. 269

Marie G. WEBER, Plaintiff in Error, v. Stanley A. WILLIAMS, Esther Williams, Fairman Wallace Taber also known as F. Wallace Taber, Defendants in Error.

Nos. 18178, 18179.

Supreme Court of Colorado, En Banc.

April 14, 1958.

Rehearing Denied May 5, 1958.

James T. Bayer, Denver, for plaintiff in error.

Early & Keller, Denver, for defendants in error.

HALL, Justice.

This proceeding on error involves two cases, in which the parties are identical, and are submitted and considered together.

From the two records before us, it appears that plaintiff in error, Marie G. Weber, to whom we will refer as Weber, was defendant in each case in the trial court, and on May 1, 1950, was the owner of ranch property located in Grand County, Colorado. On that date Weber executed her note payable to defendant in error, Fairman Wallace Taber, hereafter referred to as Taber, and one of the plaintiffs in each case in the trial court, the note being in the amount of $16,250 and secured by a second deed of trust on said ranch property.

On December 19, 1951, the defendants in error, Stanley A. Williams and Esther Williams, to whom we will refer as the Williams, with Taber filed their complaint in the District Court of Grand County, Colorado, Case No. 1012, naming as defendants Weber and Carl F. Fischer, Public Trustee of Grand County. In their complaint they allege that the Williams are the legal and equitable owners by deed (from whom is not stated) of the ranch property, subject to the encumbrance above mentioned; that the records of the county clerk indicate that Weber has title of record to the ranch property, subject to the said encumbrance; that Taber, through the Public Trustee, Fischer, had endeavored to foreclose his deed of trust, but the Williams believe said foreclosure proceedings to be void because prematurely instituted; that Fischer has no interest in the property or note or deed of trsut of Tabor and he should be requested to surrender the same to the district court for court foreclosure thereof. Taber sought court foreclosure of his deed of trust. The note and deed of trust state the address of Weber to be 'Sum Valley Ranch, Grand Lake, Grand County, Colorado.' No personal service on Weber was had or attempted in Colorado or elsewhere.

A motion for an order for publication of summons, signed and verified by the attorney for the Williams and Tabor, was filed simultaneously with the complaint. In the motion it is alleged that Weber's address is unknown to plaintiffs; that Weber is believed to be a resident of Chicago; that efforts to locate Weber have been made by plaintiffs' attorney, by the Clerk of the District Court of Denver and by her former attorney, all to no avail. On presentation of this motion, an order for publication of summons was entered, publication had, foreclosure proceedings completed and, on July 13, 1953, a sheriff's deed to the ranch property was issued to Taber.

On August 4, 1953, the Williams and Taber brought another action in the District Court of Grand County, No. 1073, against Weber and all unknown persons who claim any interest in the property described in case No. 1012, together with other property described in the complaint; the purpose of this second suit was to quiet the titles to said lands in the Williams and Taber. Summons was issued August 3, 1953. As in the first action, no personal service was had or attempted on Weber in Colorado or elsewhere.

Here again a motion for an order of service by publication was signed and verified by the attorney for the Williams and Taber and was filed simultaneously with the complaint. In this motion it is alleged:

'This is an action * * * in rem; some of the defendants * * * are unknown persons * * * Weber is a nonresident of the State of Colorado or has departed from the State without intention of returning * * * and * * * cannot be served by personal service in the State of Colorado:

'That search has been made of the public records of the City and County of Denver, State of Colorado, and of the records, of Hot Sulphur Springs, Colorado, and the County of Grand, and of telephone and other available directories in the said cities and counties; various inquiries have been made from persons who might have information concerning the defendants; endeavors have been made to serve defendants personally at any Colorado addresses available; but said efforts have been to no avail. The last known address of the defendant, Marie G. Weber, is Sun Valley Ranch, Grand County, Colorado, and, except as herein stated, that the addresses and last known addresses of each defendant is unknown.' (Emphasis supplied.)

On presentation of this motion an order for publication was entered and publication had. The clerk of the court mailed a copy of summons and complaint to 'Marie G. Weber--Sun Valley Ranch, Grand Lake, Grand County, colorado.'

On October 13, 1953, the trial court entered an order adjudging all defendants in default and on the same day entered its decree quieting title in Williams to certain of the property and in Taber to the balance of the property.

On June 25, 1956, Weber filed her motion in No. 1012 seeking to have the purported service of process quashed, foreclosure decree vacated and sheriff's sale and deed set aside, for the reason that Weber had not been served with process as required by law. On the same day Weber filed her motion in No. 1073 seeking to have the purported service of process quashed and the decree quieting the titles vacated, for the same reasons urged in No. 1012.

Hearing on both motions was had on August 13, 1956, at which time sworn testimony of the Williams are taken. Their uncontradicted testimony was to the effect that at all times subsequent to July 1951, they have resided upon and been in possession of the ranch property; that at all times subsequent to September 19, 1951, they had known that mail addressed to Weber or her husband at 2501 Blue Island Avenue, Chicago 8, Illinois, c/o American Brake Shoe Company, Medical Department, reached the Webers; that they, the Williams, had carried on a regular correspondence with Weber and her husband subsequent to September 19, 1951, and up to within three weeks of August 13, 1956, at which time Weber visited the Williams at the ranch property in Colorado. The Williams further testified that their attorney, he also being the attorney for Taber, never made any inquiry of them as to a 'last known address' of Weber and her husband.

There also appears in the record an affidavit of Weber, sworn to in Lake County, Illinois, July 3, 1956, filed in court August 13, 1956, wherein Weber states she and her husband at all times from May 1951 to May 1954 resided at 6312 Roscoe Street, Chicago, Illinois; that she was never personally served with summons or complaint and had never received such through the mails or otherwise. The Williams and Taber offered no evidence and filed no counter affidavits.

Briefs were submitted and on October 10, 1956, the trial court entered its orders denying the motions and dispensing with motions for new trial. The court made no findings of fact.

Weber seeks review of the orders denying her motions to vacate the judgments. The same or similar questions are presented in both cases and both cases are presented in one set of briefs. We dispose of both cases in this one opinion.

The judgment in the first case, the foreclosure proceeding, purported to deprive Weber of her property rights; namely, her possessory rights, her legal title and her right of redemption. Nothing can be more firmly established in our law than the principle that one may not be deprived of his property except by due process of law. Due process under applicable rules requires notice, by actual or substituted service of process. Admittedly there was no actual service. The order authorizing service by publication was obtained by a verified motion, which no doubt was made honestly and in good faith by plaintiffs' attorney; however, it contained a statement that was known by plaintiffs, the Williams, to be false. The affidavit was made in behalf of the Williams, and, in determining the question of the validity of the substituted service, they are answerable therefor. Their failure to disclose Weber's whereabouts to the extent of their...