No. 86-163
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IDA J. KAHLE,
Plaintiff and Appellant,
-vs-
IDELLA SMITHERS, Treasurer of Flathead
County; and LEE McDONALD,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Oleson Law Firm; H. James Oleson, Kalispell, Montana
For Respondent:
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Jonathan B. Smith, Deputy County Attorney, Kalispell
Hash, Jellison, O'Brien & Bartlett; James C. Bartlett,
Kalispell, Montana
Submitted on Briefs: Oct. 10, 1986
Decided: March 4, 1987
-7411- Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Treasurer of Flathead County issued a tax deed to
Lee McDonald for land owned by Ida Kahle. Ida Kahle then
brought an independent action seeking to void the tax deed.
The District Court for the Eleventh Judicial District granted
the summary judgment motion of Lee McDonald which in effect
upheld the validity of the issued tax deed. We reverse.
The determinative issue is whether the District Court
erred in granting the summary judgment motion of Lee
McDonald.
Ida Kahle became the owner of the property in dispute in
1954. The Flathead County Treasurer (Treasurer) advertised
the property for sale because of delinquent 1979 taxes. In
1980 the property was struck off to Flathead County for
$190.46. In 1982 Lee McDonald paid a total of $1,123.71
covering delinquent taxes, penalties, costs, and interest
through 1981 and obtained an Assignment of Tax Sale Certifi-
cate. He continued to pay taxes on the property. The prop-
erty was not redeemed by Ida Kahle.
In 1983, Mr. McDonald brought an action to procure a tax
deed in the District Court under 5 5 15-18-301 to 309, MCA.
Service was made by publication of summons. Ida Kahle did not
appear in the action. On August 31, 1983, a default judgment
was entered which resulted in the issuance of a tax deed by
the county treasurer to Mr. McDonald.
On February 24, 1985, Ida Kahle brought a separate
action in the District Court seeking to collaterally attack
the judgment entered August 31, 1983. Ida Kahle and Lee
McDonald filed cross-motions for summary judgment. The
District Court held that the case was barred by the doctrine
of res judicata as a result of the judgment of August 31,
1983. Summary judgment was entered in favor of Lee McDonald
and Ida Kahle appealed.
Did the District Court err in granting the summary
judgment motion of Lee McDonald?
After receiving his Assignment of Tax Sale Certificate,
Mr. McDonald chose to procure a tax deed by a District Court
proceeding under SS 15-18-301 to 309, MCA. In that action,
the District Court ordered the Flathead County Treasurer to
issue a deed of conveyance to Mr. McDonald. Mrs. Kahle did
not appear in that proceeding.
Ida Kahle contends that the tax deed judgment should be
rendered invalid for two reasons. First, Mrs. Kahle argues
that the Flathead County Treasurer was negligent in perform-
ing her record keeping duties and this negligent record
keeping caused insufficient service of process on her.
Second, Mrs. Kahle argues the notice requirements of
15-18-304, MCA, and Rule 4D, M.R.Civ.P., were not complied
with and thus the tax deed issued by the county treasurer was
void.
In her first argument, Mrs. Kahle relies on
SS 7-6-2111 (2)(a) and 7-6-2116, MCA, and concludes that the
Treasurer's duties were not "honestly, diligently and cor-
rectly performed." We can find nothing in the record that
supports these allegations. Mrs. Kahle also states that the
"[tlreasurer failed to keep a triplicate copy of the tax
receipt document in her office as required by S 7-6-2116,
MCA." Although S 7-6-2116, MCA, does require the county
treasurer to retain a triplicate copy of a receipt in the
office, we conclude that nothing in the record shows that the
Flathead County Treasurer was negligent in retaining the
triplicate copy or in performing her record keeping duties.
Therefore, this argument fails.
Mrs. Kahle argues that s h e was n e v e r n o t i f i e d o f the
pending action for procurement of the tax deed and as a
r e s u l t t h e t a x deed i t s e l f was v o i d . W c o n c l u d e t h a t Rule
e
4 D ( 5 ) , M.R.Civ.P., i s c o n t r o l l i n g on t h e q u e s t i o n o f s e r v i c e
of process upon Ida Kahle. Rule 4 D ( 5 ) ( e ) , M.R.Civ.P.,
provides:
M a i l i n g summons and c o m p l a i n t . A copy o f t h e
summons f o r p u b l i c a t i o n and c o m p l a i n t , a t any t i m e
a f t e r the f i l i n g of t h e a f f i d a v i t f o r publication
and n o t l a t e r t h a n 1 0 days a f t e r t h e f i r s t p u b l i c a -
t i o n o f t h e summons, s h a l l be d e p o s i t e d i n some
p o s t o f f i c e i n t h i s s t a t e , p o s t a g e p r e p a i d , and
d i r e c t e d t o t h e defendant a t h i s place of residence
unless the a f f i d a v i t for publication s t a t e s t h a t
of t h is
t h e r e s i d e n c e - -e d e f e n d a n t - unknown. (Empha-
s i s added.)
The affidavit f o r publication of summons s u b m i t t e d by M r .
McDonald's a t t o r n e y s t a t e d i n p e r t i n e n t p a r t :
3 . That a r e t u r n o f t h e Summons, on f i l e w i t h
t h e Clerk of t h e D i s t r i c t Court of s a i d J u d i c i a l
D i s t r i c t i n and f o r t h e County o f F l a t h e a d , shows a
f a i l u r e t o f i n d t h e Defendant, I d a J . Kahle, a / k / a
I d a J . S t o d g e l l , i n t h e S t a t e o f Montana;
4 . That t h e Defendant, - - Kahle, a / k / a I d a
P
I d a J.
J. S t o d g e l l , c a n n o t , a f t e r due d i l i g e n c e , - found
- be
w i t h i n t h e S t a t e - Montana;
of (Emphasis a d d e d . )
I n substance t h e a f f i d a v i t s t a t e s t h a t t h e defendant cannot
be found w i t h i n t h e S t a t e o f Montana. T h a t does n o t s a t i s f y
t h e Rule 4 D ( 5 ) ( e ) , M.R.Civ.P., requirement t h a t t h e a f f i d a v i t
s t a t e t h a t t h e residence of t h e defendant i s unknown. An
affidavit statement that the defendant cannot, after due
diligence, be found w i t h i n t h e S t a t e o f Montana i s n o t t h e
equivalent of s t a t i n g t h a t t h e residence of t h e defendant i s
unknown. The key f a c t r e q u i r e d i n t h e a f f i d a v i t f o r p u b l i c a -
t i o n of summons i s t h a t t h e residence of t h e defendant i s
unknown. That f a c t i s n o t c o n t a i n e d i n t h e p r e s e n t a f f i d a v i t
for publication. Here the affiant could have known the
address of defendant Kahle was outside the State of Montana
and nevertheless completed the affidavit.
We do not find any Montana cases which are controlling.
However, we conclude that the plain wording of Rule 4D(5) (e),
M.R.Civ.P., requires that the affidavit for publication of
summons state that the residence of the defendant is unknown.
Because the affidavit for publication failed to make that
statement or an equivalent statement, we conclude that the
affidavit was insufficient. We therefore hold that the
service of process upon Ida Kahle was insufficient to obtain
jurisdiction over her. This conclusion is consistent with
the cases in Montana which have held that tax redemption
statutes must be liberally construed in favor of the redemp-
tioner and the exercise of her rights of redemption. See
Lowery v. Garfield County (1949), 122 Mont. 571, 581, 208
P.2d 478, 484.
Because of the insufficiency of the service of process
upon Ida Kahle in the action to procure the tax deed, we
further conclude that Ida Kahle could collaterally attack the
judgment of August 31, 1983, in the present proceedings.
That conclusion is mandated by Russell Realty Co. v.
Kenneally (1980), 185 Mont. 496, 501, 605 P.2d 1107, 1110, in
which we stated:
While it is a general rule that a judgment cannot
be attacked in a collateral action such attack is
permissible if the first judgment is void for lack
of jurisdiction. (Cite omitted.) It is axiomatic
that if service of process on a party is improperly
made, the court acquires no jurisdiction over that
party, (cite omitted) and it may collaterally
attack the judgment.
Mrs. Kahle requested costs and attorney fees in accor-
dance with
.
15-18-306, MCA. This is the code section
providing for costs and attorney fees in proceedings to
procure a tax deed. That is not the nature of the present
proceeding. Mrs. Kahle here has brought an action to collat-
erally attack a judgment rather than a proceeding to procure
a tax deed. We hold that Mrs. Kahle is not entitled to
recover costs or attorney fees under 5 15-18-306, MCA.
We reverse the summary judgment order of the District
Court and remand for further proceedings consistent with this
opinion.