733 P.2d 844 | Mont. | 1987
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.
M r s . Kahle a r g u e s t h a t s h e was n e v e r n o t i f i e d o f t h e pending a c t i o n f o r procurement o f t h e t a x deed and a s 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 . We c o n c l u d e t h a t Rule 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 Rule 4 D ( 5 ) ( e ) , M.R.Civ.P., o f p r o c e s s upon I d a Kahle. p r o v i d e s :
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 t h e f i l i n g o f 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 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 d e f e n d a n t a t h i s p l a c e o f r e s i d e n c e u n l e s s 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 s t a t e s t h a t t h e r e s i d e n c e o f t h e d e f e n d a n t i s unknown. (Empha-
- - - s i s added.) The a f f i d a v i t f o r p u b l i c a t i o n o f 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 C l e r k o f t h e D i s t r i c t C o u r t o f 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; P - -
4 . That t h e Defendant, I d a J. Kahle, a / k / a I d a 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 , be found - - w i t h i n t h e S t a t e - o f Montana;
(Emphasis a d d e d . ) I n s u b s t a n c e 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 d e f e n d a n t c a n n o t 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., r e q u i r e m e n t 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 r e s i d e n c e o f t h e d e f e n d a n t i s unknown. An a f f i d a v i t s t a t e m e n t t h a t t h e d e f e n d a n t c a n n o t , a f t e r due d i l i g e n c e , 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 e q u i v a l e n t o f s t a t i n g t h a t t h e r e s i d e n c e o f t h e d e f e n d a n t 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 o f summons i s t h a t t h e r e s i d e n c e o f t h e d e f e n d a n t 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.
