Wright BOMFORD, Audrey S. Bomford, Tom Bomford, Dan German, and Dan German, Executor of the Estate of Dee German, Deceased, Plaintiffs in Error, v. SOCONY MOBIL OIL CO., Inc., a New York Corporation, Major Royalty Corporation, a corporation, R. B. Eavans, Marie Evelyn Eavans, Guy Looper, Lena A. Looper, F. L. Finley, R. J. Dollar, Paul A. Tucker, and the Unknown Heirs, and Heirs, Administrators, Executors, Legatees, Devisees, Trustees and Assigns, Immediate and remote, of Sampson Joe, Deceased, Choctaw Roll No. 4828, and The Unknown Claimants to the lands involved herein, the Heirs, Executors, Administrators, Legatees, Devisees, Trustees and Assigns, immediate and remote, Defendants in Error.
No. 40869.
Supreme Court of Oklahoma.
April 9, 1968.
440 P.2d 713
We are convinced after review of the record under the authorities cited that no valid reason exists for disturbing the order of the State Industrial Court.
Order sustained.
All Justices concur.
Carloss Wadlington, Ada, for defendants in error.
McINERNEY, Justice.
This case turns on the validity of a prior quiet-title decree interposed as a bar to the present action. The decree is challenged for fatal defects in the publication process on which it is rested. At issue below was plaintiffs’ title to a mineral estate underlying land situated in Latimer County. Their appeal is from an adverse judgment of the trial court.
Plaintiffs deraign their title to the minerals through mesne conveyances from a Choctaw allottee. The last muniment of title vested in them in 1923. Defendants are purchasers of a mineral estate from one who had acquired it in April 1959, from a grantee in fee of a certificate tax deed of Nov. 5, 1958. The tax deed grantee‘s title to the fee was quieted in him, as against all holders of record title, by decree of the District Court of Latimer County rendered on Jan. 24, 1959. In that action service upon the defendants was effected solely by publication. The present action to cancel mineral deeds of record and quiet title to the mineral estate was commenced over three years after the rendition of the 1959 judgment.
Urging error in the trial court‘s failure to quiet their asserted title, plaintiffs argue that both the tax deed and the 1959 quiet-title decree were void on the face of the record and hence subject to collateral attack at any time.
We need not pause here to inquire into the validity of the proceedings preceding the issuance of the certificate tax deed. This is admittedly a collateral attack on the 1959 decree. Our inquiry into its validity may not extend beyond an examination of the judgment roll in the action. Collingsworth et al. v. Hutchison, 185 Okl. 101, 90 P.2d 416, 418; Lind v. Goble, 117 Okl. 195, 246 P. 472, 475. Unless the record affirmatively discloses want of jurisdiction, every fact not negatived on the face of the judgment roll must be presumed to support a judgment of a court of general jurisdiction. Yahola Oil Company v. Causey, 181 Okl. 129, 72 P.2d 817, 819; Weimer v. Augustana Pension and Aid Fund, 179 Okl. 572, 67 P.2d 436, 438. The challenged proceedings which culminated in the issuance of the 1958 tax deed do not appear on the face of the judgment roll in the 1959 quiet title action. We cannot here consider their validity. Moreover, it is not the tax deed but the 1959 quiet-title decree that was interposed in the trial court as a bar to the present suit.
Examining the 1959 judgment roll in the light of our past decisions, we are constrained to hold that neither of the asserted defects in the publication process, discussed later, can operate to render the 1959 quiet-title decree void on the face of the record proper.
The publication affidavit in the 1959 quiet-title action names everyone who then
Plaintiffs urge the affidavit does not meet the statutory requirements because it fails to state with particularity why the named defendants could not be served personally within the state.
Publication process made pursuant to the authority of
Our construction so placed on
While our time-honored construction of
The general rule that emerges from Mullane and subsequent cases is simple: A state cannot invest itself with, and exercise through its courts, judicial jurisdiction over a person in a proceeding which may directly and adversely affect his legally protected interests, unless a method of notification is employed which is reasonably calculated to give him knowledge at a meaningful time and in a meaningful manner of the attempted exercise of jurisdiction and an opportunity to be heard. No rigid formula exists as to the kind of notice that must be given; the notice required will necessarily vary with circumstances and conditions, and in some instances, as in the case of missing or unknown persons, “personal notice might not be reasonably possible.” But notice by publication is clearly insufficient with respect to one whose name and address are known or readily ascertainable from sources at hand. In other words, the requirements of due process are not satisfied unless due diligence has been exercised to find the whereabouts of the defendant. Mullane v. Central Hanover Bank, supra; Schroeder v. City of New York (1962), 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255; Walker v. City of Hutchinson, Kansas (1956), 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Wisconsin Electric Power Co. v. City of Milwaukee (1957), 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed.2d 241; Pierce v. Board of County Com‘rs of Leavenworth Co., 200 Kan. 74, 434 P.2d 858; City of Houston v. Fore, Tex.Civ.App., 401 S.W.2d 921.
Oklahoma has long recognized the Mullane doctrine. Some fifteen years before Mullane this court pronounced in Ross v. Thompson, 174 Okl. 183, 50 P.2d 385, that publication service is void as to “parties whose names and claimed interest may be ascertained from the records of the county in which the land is situate” and that “[b]efore a plaintiff may resort to service by publication on unknown owners of realty, or sue defendants by name, if living or if dead, their heirs, etc., due diligence must be exercised to ascertain whether defendants so sued are living or dead, and if dead, the names and whereabouts of their heirs.” See also, Martin v. Bastion, Okl., 424 P.2d 1, and cases cited therein.
Due diligence is a relative term lacking a fixed content. It presents a question for judicial determination which must be decided in the first instance by the trial court. Its jurisdiction over the absent defendants clearly depends upon the resolution of that issue. And in order to decide the matter the trial judge must have the facts before him. If the facts before the court have a legal tendency to show a diligent search for the whereabouts of the defendant, or the whereabouts and identity of his heirs, and the court is satisfied that primary sources at hand, such as local tax rolls, deed records, judicial records and other official records, as well as available secondary sources, such as a telephone directory, a city directory or the like, have been exhausted in a meaningful pursuit of information, the approval of publication process as a method of notification is to be
A court is bound to take notice of the limits of its authority. It is its right and duty to make an examination into its jurisdiction, whether raised by the pleadings or suggested by counsel or not, and to determine its power to entertain the cause. If the court finds at any stage of the proceedings that it is without jurisdiction, it is its duty to take proper notice of the defect by staying the proceedings, dismissing the cause, or by other appropriate action. East Side Baptist Church v. Morgan, 204 Okl. 685, 233 P.2d 957, 958; Alexander Drug Co. v. Holbert, 156 Okl. 198, 10 P.2d 412; Fehr v. Black Petroleum Corporation, 103 Okl. 241, 229 P. 1048, 1050, 21 C.J.S. Courts § 114, pp. 175, 176.
When constitutionally protected rights are at stake, the court‘s determination of the validity of its process must be made, at the latest, when the judgment is rendered and before it is sought to be enforced or vacated. Due process is violated by the mere act of exercising judicial power upon process not reasonably calculated to apprise the defendant of the pendency of an action. Riverside & Dan River Cotton Mills v. Menefee, 237 U.S. 189, 35 S.Ct. 579, 59 L.Ed. 910. And the violation is not cured by granting the aggrieved party a hearing on his motion to set aside the tainted judgment. The burden of affording proper notice rests on the plaintiff. It cannot be avoided by the perfunctory judicial approval of an unsupported conclusion of “due diligence“. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62.
Our practice and procedure are not conducive to the conduct of an inquiry into the issue of due diligence prior to the rendition of a default judgment in a case in which resort was had to publication process. While the terms of
In some states in which an order for publication service is required before process by publication may be effected, such order may not be made unless the judge is satisfied that the plaintiff has in fact exercised due diligence to ascertain the names and residences of defendants before resorting to constructive service. Sheffield v. Carter, Fla.App., 141 So.2d 780, 786. While this appears to be a safer practice, our present statute contains no similar requirement. The provisions of our Children‘s Court Act,
Our decisional law, as it now stands, does not reflect the apparent reasons underlying the 1953 amendment to
Unless the reference to an affidavit of due diligence is considered only a formality, the terms of
We cannot accede to plaintiffs’ contention that the judgment roll in the 1959 quiet-title action is tainted by a fatal defect because it fails to affirmatively show an active and diligent effort to procure personal service upon the defendant within the state. Where, as here, the journal entry recites that the court, as required by statute (
Plaintiffs lastly contend the publication notice in the 1959 suit was void because it appeared on December 11, 1958- December 18, 1958- and on December 25, 1958. We are urged that the statute requires a 21 days’ lapse between the first and last publication, and a shorter period between them constitutes a fatal defect apparent on the face of the judgment roll. The same point was urged in Feagin v. Davidson, supra, 431 P.2d at p. 401. We there held that a notice published three times in intervals of one week between each successive publication meets the requirements of
The 1959 quiet-title decree cannot be regarded as void on the face of the judgment roll. The facts dehors the record, adduced below, do not establish that there were sources at hand from which the whereabouts or post-office addresses of the absent defendants (served solely by publication) could have been ascertained.
Mindful of our duty to guard against any attempt to upset settled titles by imposition of new requirements which
Affirmed.
JACKSON, C. J., IRWIN, V. C. J., and DAVISON, WILLIAMS, BLACKBIRD, BERRY and HODGES, JJ., concur.
LAVENDER, J., concurs in part and dissents in part.
LAVENDER, Justice (dissenting in part):
I concur in those portions of the majority opinion herein which are represented by the first, second, and third paragraphs of the syllabus, and in the determination that the judgment under attack in the trial court was not shown to be violative of the “due process” provisions of the state or federal constitutions and should be affirmed; but I dissent to all other portions of the opinion.