White v. Connor
Decision Date | 22 July 1960 |
Docket Number | No. 9835,9835 |
Citation | 138 Mont. 1,354 P.2d 722 |
Parties | Horace O. WHITE and Ethel White, Plaintiffs and Respondents, v. Marion CONNOR, as Special Administratrix of the Estate of David Donohue, Deceased, and Catherine Donohue, his wife, Alice Flink, Jens Nielson and Alma Nielson, his wife, et al., Defendants and Appellants. |
Court | Montana Supreme Court |
Longan & Jones, Neil S. Keefer, Billings, for appellants. Franklin S. Longan, Billings, argued orally.
Clifford E. Schleusner, Billings, argued orally for respondents.
This is an appeal from an order made May 16, 1957, by the district court for Yellowstone County, which assumed to open up, set aside and vacate a decree entered on May 24, 1956, by that court in a suit to quiet the title to a particularly described section of land situate in Yellowstone County, Montana.
The Facts. On August 20, 1943, Yellowstone County, Montana, as the sole plaintiff, by its then county attorney, R. F. Hibbs, Esq., and his deputies, Frederic Moulton, Esq., and Melvin Hoiness, Esq., commenced quiet title action No. 21,027, in the district court for Yellowstone County, by that day filing in such court, the plaintiff county's complaint seeking to quiet title to:
'All of Section 28, Township 7, North of Range 32, East of the Montana Principal Meridian, Yellowstone County, Montana, subject to a lease to The Carter Oil Company, a corporation.'
The defendants, known or unknown, named or unnamed, mentioned, designated, or in any wise referred to in plaintiff county's complaint so filed were as follows:
'David Donohue and _____ Donohue, his wife, if any, Alice Flink; Jens Nielson and Alma Nielson; his wife; the unknown heirs at law of each of the above-named parties if any; and all other persons unknown, claiming, or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the complaint, or any part thereof adverse to Plaintiff's ownership thereof, or any cloud upon Plaintiff's title thereto, whether such claim, or possible claim, be present or contingent, including any claim or possible claim of dower, inchoate or accrued, Defendants.'
Summons Issued. On August 20, 1943, and immediately upon the filing of the above complaint, summons was duly and regularly issued in the action and delivered to the sheriff of Yellowstone County, Montana, for service upon all the defendants, both known and unknown, mentioned or referred to in the plaintiff county's complaint.
Lis Pendens Filed. On the day the suit was commenced, to wit, on August 20, 1943, a due, proper and sufficient written notice of the pendency of the county's quiet title action No. 21,027, designated as 'Notice of the Pendency of an Action', and signed by plaintiff's counsel, Melvin N. Hoiness, Esq., as deputy county attorney for Yellowstone County, was filed in the office of the county clerk and recorder of Yellowstone County, Montana, which notice contained the title of the district court in which the quiet title action was and is filed, the full caption of the cause, a complete description of all the property involved in the action so commenced, and a statement of the relief sought by the plaintiff, Yellowstone County, Montana, all as is provided for in section 9481, Revised Codes of Montana of 1935 (now R.C.M.1947, § 93-6205). Also see R.C.M.1947, § 93-6205.
No question was or is raised as to either the sufficiency or validity of the notice of the pendency of the action so filed.
On August 24, 1943, the summons theretofore issued in the action was returned to and filed in the office of the clerk of the district court for Yellowstone County, in district court action No. 21,027, supra, with the return of the sheriff of Yellowstone County endorsed thereon, certifying that service of such summons had been personally made in Yellowstone County, Montana, upon the defendants, Jens Nielson and Alma Nielson, his wife, and that, with the exception of these two personally served defendants, to wit, Mr. and Mrs. Nielson, the other defendants named or referred to in the action could not, after diligent search and inquiry, be found within the State of Montana, and that personal service could not be made upon the defendants named in the summons and complaint other than the two served defendants, namely, Jens Nielson and Alma Nielson, his wife.
Neither the defendant, Jens Nielson, nor the defendant, Alma Nielson, made any appearance of any sort or character in the action.
Affidavit for Publication of Summons. On July 17, 1944, pursuant to the provisions of section 9482, Rev. Codes of Montana of 1935, and upon the filing of an affidavit that day made and filed by Melvin N. Hoiness, Esq., of counsel for the plaintiff county and then a deputy county attorney for Yellowstone County, which affidavit sets forth all the essential facts with reference to any and all of the defendants in the action upon whom personal service of summons within the State of Montana could not and cannot be made, the district court for Yellowstone County, made its certain order for the service of summons by publication upon each and all of the defendants not theretofore personally served. See section 9482, Rev. Codes 1935 (now R.C.M.1947, § 93-6206).
Order for Publication of Summons. In its order for the publication of summons so made and filed on July 17, 1944, the district court for Yellowstone County ordered that service of summons in such district court action No. 21,027 be made upon all the defendants not theretofore personally served, by publication of alias summons in the Laurel Outlook, a newspaper published in Laurel, Yellowstone County, Montana, and designated by the order, as the newspaper most likely to give notice to the defendants in the action, and ordered that such publication be made once a week for a period of four consecutive weeks. See sections 9483 and 9485, Rev. Codes of 1935, now R.C.M.1947, §§ 93-6207, 93-6208.The order further directed and ordered that a copy of the summons and a copy of the complaint in the action be forthwith deposited in the postoffice, postage prepaid, directed to each of the following three named defendants at their last known places of residence, to wit:
'David Donohue and _____ Donohue, his wife, if any, Castle Cooke, Kilworth County, Cork, Ireland.
'Alice Flink, Minneapolis, Minnesota.'
Pursuant to the above court order, alias summons for publication was duly and regularly issued in said action, on July 17, 1944.
Proof of Mailing. On July 17, 1944, the affidavit of Emile B. Stone, a citizen of the United States and a resident of the State of Montana, over the age of twenty-one years, and not disqualified from giving testimony in district court action No. 21,027 filed in the office of the clerk of the district court in said cause her certain affidavit wherein she deposed
Proof of Publication. The publication ordered was duly completed August 10, 1944, and was and is established by the affidavit of Jos. Gehrett, foreman of the Laurel Outlook, a weekly newspaper published in the City of Laurel, in the County of Yellowstone, which affidavit has attached and made a part thereof a true and correct copy of the alias summons issued in said quiet title action No. 21,027, supra. In his said affidavit, which was filed in said district court and cause of September 7, 1944, the affiant, Jos. Gehrett deposes and says that a true copy of the alias summons 'was published in the regular and entire issue of said newspaper for 4 successive issues, commencing on the 19th day of July, 1944, and ending on the 9th day of August, 1944 (both days inclusive) making in all 4 publications.'
The last sentence of section 9485, Rev. Codes 1935, provided: 'Service shall be deemed complete on the twenty-second day after the day of first publication.'
Since the summons for publication was first published on July 19, 1944, the service was deemed complete on the twenty-second day thereafter being August 10, 1944.
Thus, at all times from and after August 10, 1944, did the district court for Yellowstone County acquire and have jurisdiction over the person of each and every defendant in this action, whether known or unknown and whether named or unnamed therein.
Substitution of Special Administratrix for Deceased Defendant. On March 28, 1956, being more than eleven years after service of process had been completed upon all defendants in quiet title action No. 21,027, J. J. Cavan, Jr., then the county attorney for Yellowstone County, entered into a written stipulation with the law firm of Longan and Jones, as counsel for one Marion Connor, special administratrix of the estate of David Donohue, deceased, stipulating that such administratrix may be substituted as a defendant in the quiet title action in the place and stead of the defendant, David Donohue, and on March 30, 1956, and pursuant to such stipulation the court ordered that such substitution be made.
Joint Answer. On April 4, 1956, the defendant, Marion Connor, as special administratrix of the estate of David Donohue, deceased, and the defendant, Catherine Donohue, filed their joint answer to the complaint of the plaintiff, Yellowstone County, which complaint had been filed on August 30, 1943, being more than a dozen years before.
No lis pendens was filed at any time by or on behalf of either of the two answering defendants and their joint answer raised no issue whatever as to the title asserted and...
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...Rules of Civil Procedure, the prior decisions of this court were not abandoned. Hence, the rule was and is as stated in White v. Connor, 138 Mont. 1, 15, 354 P.2d 722, where quoting from Cure v. Southwick, 137 Mont. 1, 349 P.2d 575, this court said: "Also, this court has declared many times......
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