No. 88-479
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1989
YVONNE SINK,
P l a i n t i f f and A p p e l l a n t ,
-vs-
ROBERT G . SQUIRE and JUDITH M . SQUIRE,
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t Court of t h e F i f t h 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 Madison,
The H o n o r a b l e F r a n k M. D a v i s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J a c k Y a r d l e y ; Y a r d l e y & Y a r d l e y , L i v i n g s t o n , Montana
For Respondent :
C h e s t e r L l o y d J o n e s ; J o n e s & Hoffman, V i r g i n i a C i t y ,
Montana
S u b m i t t e d on B r i e f s : J a n . 1 2 , 1989
Decided: February 2 7 , 1989
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Appellant Yvonne Sink appeals from the dismissal by the
Fifth Judicial District Court, Madison County, of her action
to set aside the previous judgment of the court in Civil
Action No. 7448 for lack of jurisdiction due to improper
service. The court by its dismissal upheld its previous
judgment awarding a tax deed to respondents. We reverse the
court's dismissal and order the tax deed awarded in the prior
action set aside as void for lack of jurisdiction.
Appellant raises the following issues on appeal:
1. Did the publication of the summons for publication
without a court seal amount to an improper service thereby
denying the District Court jurisdiction over the tax deed
action?
2. Did the respondents fail to exercise due diligence
to determine appellant's current place of residence prior to
mailing the summons for publication and complaint to the
incorrect address?
The appellant Yvonne Sink, together with her husband
James Sink, purchased a 10.293 acre lot in Madison County
from The Shining Mountains North (a limited partnership) in
the mid 1970's. Thereafter, Yvonne and James separated. She
then moved from Anchorage, where she had been living with her
husband prior to their separation, to the San Francisco Bay
area. Upon separation, they orally agreed that Yvonne would
make the regular payments on the property while James would
pay the property taxes. Yvonne continued to make payments on
the property until 1983. At that time the balance owing on
the property was paid in full, and she and her estranged
husband received a warranty deed to the property from Shininq
Mountains. James Sink subsequently conveyed his interest in
the property to Yvonne by a quitclaim deed dated on March 9,
1987. Shining Mountains remained the owner of record,
however, because Yvonne failed to record her deed with the
Madison County Clerk and Recorder's Office. Yvonne testified
she was unaware of any requirement to record her ownership
before she herself sold the property.
Although Yvonne diligentlv made payments until the
amount owing on the property was paid in full, James Sink
failed to pay the taxes assessed on the property.
Consequently, the Treasurer of Madison County (County
Treasurer) issued a Certificate of Tax Sale on July 22, 1981
for failure to pay the $91.40 in taxes assessed against the
property in 1980. Yvonne testified she received no actual-
notice of these delinquent taxes.
On March 26, 1985, the respondents, Robert and Judith
Squire, paid all the taxes, penalties, and interest assessed
and outstanding against the property from 1980 to date. The
total paid amounted to $609.71. The County Treasurer
thereafter assigned the Tax Sale Certificate to them. The
Squires then instituted Civil Action No. 7448 against Yvonne
and James Sink in order to acquire a tax deed to the
property.
The Sheriff stated by way of a Sheriff's Return !which
erroneously failed to name the parties and to give the date
the Sheriff was unable to locate them) that he was unable to
locate the Sinks in Madison County, and thus he could not
serve the complaint and summons upon them. The Squires'
attorney then filed an affidavit requesting an order for
service of summons by publication. The Clerk of Court
granted this requested order and issued a summons for
publication on April 26, 1985. This summons failed to list
the name or address of the plaintiffs' attorney. The
attorney for the plaintiffs signed an affidavit attesting t.o
the mailing of a copy of this summons for publication.
A second summons for publication later was signed on
May 2, 1 9 8 5 and then published for three consecutive weeks in
the Madisonian, a local county newspaper. This latter
published summons correctly listed the name and address of
the plaintiffs' attorney and contained the Clerk of Court's
signature, although it did not have a court seal. The
plaintiffs, however, did - mail this legally correct May
not
2nd version to Yvonne and James Sink at their last determined
address in Homer, Alaska.
Defendants failed to appear or answer the summons
within the twenty day period following service of the
summons. The District Court then entered a default judgment
against the Sinks on June 18, 1 9 8 5 and issued a tax deed to
the Squires. When Yvonne Sink subsequently learned of this
default judgment, she filed the instant action requesting the
District Court to declare the default judgment in Civil
Action No. 7 4 4 8 void for lack of jurisdiction because of
improper service upon defendants. The District Court ruled
that the plaintiffs substantially complied with the spirit
and purpose of the service requirements and that the court
therefore had jurisdiction over Civil Action No. 7 4 4 8 .
Consequently, the District Court dismissed the present case.
Yvonne Sink appeals from the court's determination that
jurisdiction existed in Civil Action No. 7 4 4 8 and from the
court's subsequent dismissal of this case.
At the outset, we note that the most egregious error
affecting the jurisdiction of the District Court to hear this
case was the plaintiffs' failure to mail to the defendants a
copy of the summons for publication with the name and address
of plaintiffs' attorney on it. This issue was not raised by
Yvonne Sink on appeal. However, an examination of the record
reveals that the District Court took judicial notice of the
facts of the prior Civil Action No. 7448 and the parties
stipulated to the admission of these facts into the record.
These facts give rise to the jurisdictional error to which we
now turn our attention.
Rule 4D(5) (e), M.R.Civ.P. requires a plaintiff to mail.
a copy of the summons for publication and complaint to a .
defendant's place of residence. The content and form of this
summons for publication must comply with the mandatory
requirements set forth in Rule 4C (2) , M.R.Civ.P. These
requirements are as follows:
The summons shall be signed by the clerk,
be under the seal of the court, contain
the name of the court and the names of
the parties, be directed to the
defendant, state - - and address of
the name
- plaintiff ' s
the attorney, if any,
otherwise the plaintiff's address, and
the time within which these rules require
the defendant to appear and defend, and
shall notify him that in case of his
failure to do so judgment by default will
be rendered against him for the relief
demanded in the complaint. (Emphasis
added. )
The summons for publication sent to the defendants on April
26, 1985 failed to fully comply with these mandatory
requirements. Plaintiffs had an attorney, yet the summons
for publication actually sent to the defendants failed to
state the name and address of plaintiffs' attorney. The
summons for publication actually published corrected this
omission, but a copy of this latter published summons was not
mailed to the defendants.
This Court has previously required strict and literal
compliance with the statutory procedures required for
constructive service. E.g., Shields v . Pirkle Refrigerated
Freight Lines, Inc. (1979), 181 Mont. 37, 44, 591 P.2d 1120,
1124, citing from 62 Am.Jur.2d Process $ 68. As this Court
has previously stated:
It is the settled judicial policy of this
state that more accurate observance, with
regard to compliance with provisions of
the statutes, is required in constructive
service than in personal service; also
that less presumption in favor of
jurisdiction of a court, upon rendition
of judgment, is indulged in when the
judgment is based upon constructive
service than when based upon personal
service.
Holt v. Sather (1928), 81 Mont. 442, 448, 264 P . 108, 111.
Such compliance with mandatory service requirements is
essential to jurisdiction. Consequently, this Court will
uphold the jurisdiction of a District Court despite a failure
to comply with all mandatory service requirements only when
the plaintiff affirmatively shows that there is absolutely -
no
possibility of prejudice from the failure. See, e.g., Holt,
No such showing was made in this case. The possibility
exists that James and/or Yvonne Sink did not know where to
send their response because of the omission of the name and
address of the plaintiffs' attorney on the copy of the
summons for publication mailed to them. The District Court
thus erred in dismissing the present case which challenged
the court's jurisdiction over Civil Action No. 7448. We hold
that the plaintiffs' failure to comply with this mandatory
service requirement prevented the District Court from
obtaining jurisdiction to hear and render a judgment in Civil
Action No. 7448. We therefore need not discuss those
jurisdictional errors raised by Yvonne Sink on appeal.
The judgment of the District Court in this case is
reversed and the prior judgment and tax deed issued in Civil
Action No. 7448 ordered set aside as void for lack of
jurisdiction.
We concur:
Justices