Webster v. Heginbotham

• Decision Date: 13 May 1912
• Citation: 129 P. 569,23 Colo.App. 238,23 Colo.App. 229
• Parties: WEBSTER et al. v. HEGINBOTHAM.
• Court: Colorado Court of Appeals

129 P. 569

23 Colo.App. 229, 23 Colo.App. 238

WEBSTER et al. v. HEGINBOTHAM.

Court of Appeals of Colorado

May 13, 1912

On Rehearing, January 13, 1913

Appeal from District Court, Phillips County; H.P. Burke, Judge.

Action by W.E. Heginbotham against B.M. Webster and others, with cross-complaint by defendant Webster. Judgment for plaintiff and defendants appeal. Reversed and remanded, with directions to vacate the judgment in favor of plaintiff, and to enter judgment in favor of defendant Webster, quieting title as prayed for in his cross-complaint.

Allen &amp Webster, of Denver, for appellants.

Munson & Munson, of Sterling, for appellee.

KING, J.

This was a statutory proceeding by appellee to quiet title to certain lands in Phillips county, Colo. The complaint was in the usual form, alleging title and possession in plaintiff and adverse claim by the defendants. For answer the defendant B.M. Webster (1) denied all allegations of the complaint except his adverse claim to the premises; (2) pleaded as an estoppel, and as an adjudication of the title, a judgment and decree of the county court of Phillips county in his favor rendered May 8, 1906, in a suit to quiet title in which he was plaintiff and J. Fred Munson (and others whose names it is not necessary to mention) were defendants, alleged that notice of the pendency of said action was filed for record in the office of the county clerk and recorder of said county at the time of the commencement of said suit, to wit, November 23, 1905, and that plaintiff in this case has no interest in said premises except as derived from the said J. Fred Munson (3) title under a treasurer's tax deed. Defendant asked that his own title be quieted. For reply plaintiff admitted the judgment and the filing of the notice of suit pending, but alleged that the judgment was null and void, and the notice of no force or effect. The cause was tried to the court without a jury, and judgment rendered in favor of the plaintiff.

Plaintiff deraigned title by patent from the government to "John F. Monson" dated August 5, 1890, and recorded March 27, 1907, and a quitclaim deed from said "John F. Monson" to plaintiff, dated and executed in Arkansas May 7, 1906, and recorded July 25, 1906. No attempt was made to prove possession. Defendants offered in evidence the judgment roll of a case in the county court entitled "B.M. Webster v. J. Fred Munson et al.," consisting of complaint, summons, and return thereon after 10 days that after diligent search the defendant could not be found, affidavit for publication, proof of publication and decree, in regular form and in full compliance with the provisions of the Code relative to publication of summons and proof thereof, supported by the testimony of a witness that he had known the land, title to which was in dispute, for many years; that it had been occupied and owned by a man whose full name was "John Fred Monson," but who was commonly known as "Fred Munson"; that the surname of said person was spelled "M-o-n-s-o-n," but pronounced as if it were spelled "M-u-n-s-o-n." Plaintiff objected to the admission of the judgment roll, assigning as reason that the parties to the proceedings were not the same, but a different party, both as to the initials and the surname, to wit, that the patentee was named "John F. Monson," while the defendant in the proceedings under consideration was "J. Fred Munson," and that service upon said "John F. Monson" had not been obtained by the publication; also that the affidavit of publication showed that the name "J. Fred Munson" had not been properly published, but there were two affidavits of publication, one of which showed no error. The objections were overruled, and the judgment roll admitted. The lis pendens notice was offered and received in evidence without objection. This notice was in the usual and regular form, as provided by the Code, describing the plaintiff, and the defendant in that case (J. Fred Munson), with a full description of the land in litigation. The evidence showed that aside from the patent and quitclaim deed heretofore mentioned, both of which were recorded long after the decree pleaded as an estoppel, there was no record title to the land in the name of "John F. Monson." The trial court seems to have rendered judgment upon the theory that although the evidence had established the identity of the patentee with the defendant in the judgment pleaded, and that the service by publication was sufficient as against said defendant, yet, inasmuch as no showing had been made that the plaintiff in this case had knowledge of the different pronunciations of the name "Monson," he was not bound nor affected by the recorded notice of suit pending, nor charged with knowledge or notice that the action against the defendant in that case was in reality an action against the patentee from whom he derived title by quitclaim deed, and thereupon held the proceedings in the county court and the notice of suit pending a nullity as to the plaintiff in this case, and that proof of actual possession was unnecessary.

1. From the foregoing statement it is apparent that the judgment appealed from must stand or fall according to the effect to be given to the judgment against "J. Fred Munson" under service of summons by publication, and to the notice of lis pendens; that is to say, whether, if the proceedings were regular in every respect, such judgment and notice were binding upon "John F. Monson" and his assignee.

Substituted service by publication is permitted only where personal service cannot be made, and in certain classes of cases wherein specific property is to be affected, or the procedure is such as is known as a proceeding in rem, Civil Code (Rev.Stats.1908) § 45. Provision for such service is made from necessity. The actual or natural presumption that the defendant, usually a nonresident of the state, will see the published notice, is not very strong, nor the probability great; but the legal presumption that it has come to his notice, or, in other words, that he has been regularly served with summons, is conclusive as against collateral attack, in case all requirements of the Code have been complied with, and thereafter the jurisdiction of the court to hear and determine the cause is as full and complete as in other cases of default after service, and that part of the Code which says, "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect," is applicable. In this case the court found, and the record shows, that the judgment pleaded as an estoppel was based not only upon substantial but technical compliance with the provisions of the Code relative to service of summons by publication, so that as to the defendant "J. Fred Munson," as well as to any one claiming by, through, or under him, the judgment was both valid and binding; and also that by reason of the record of the notice of suit pending, as provided by the Code, the effect of the judgment upon the purchaser or privy related back to the date of the filing of such notice for record in the office of the county clerk and recorder, if such notice was sufficient and effective to charge him with constructive notice of the suit affecting title to the property described in the complaint. As has been heretofore stated, the record notice contained a complete description of the land, the name of the defendant as in the complaint, and all other matters required by the Code, and was therefore notice that the title to this particular land was in litigation as against "J. Fred Munson."

2. There is good reason and abundant authority for...