Lead Opinion
In the year 1891, one Pauline E. Maupin was the owner in fee simple of W. \ of S. E. and N. E. £ of S. E. ¿, section 23, township 39 N., R. 5 west, B. M. On July 6, 1891, she gave to Thomas L. Krutz a mortgage on said land to secure a promissory note for the sum of $175, with ten interest coupon notes attached, the note by its terms becoming due July 6, 1896, and provided for interest at the rate of seven per cent per annum until maturity and twelve per cent until paid. The interest coupon notes were given for the interest on the $175 note and were by their terms due semiannually, and if not paid when due to bear interest at the rate of twelve per cent per annum.
On said July 6, 1891, she also gave to C. A. Leighton a mortgage on the same land to secure a note for $26.50 in ten equal installments to become due on each six months until they were all paid.
On the twenty-third day of September, 1895, said Krutz assigned to A. L. Mills (plaintiff herein) the note for $175 with the mortgage securing the same.
On the twenty-seventh day of September, 1895, said Leigh-ton assigned the note for $26.50, together with his mortgage securing the same, to said Mills, the plaintiff.
After mortgaging said land said Pauline E. Maupin conveyed the land to one Thomas Childers and said Childers conveyed to Thomas E. Morgan and Rachel, his wife, who, on the second day of February, 1894, conveyed by warranty deed said land to J. L. Smiley, appellant. Said Smiley took possession
On the twenty-fourth day of September, 1896, plaintiff Mills filed his complaint in the district court of the second judicial district for Latah county, attempting to foreclose the mortgage given by Pauline E. Maupin to Thomas L. Krutz * also to foreclose the mortgage given by Pauline E. Maupin to G. A. • Leighton, and in said action made the following persons- defendants: Pauline E. Maupin, a widow, Samuel Geer, Thomas-M. Morgan, Eachel Morgan, his wife, M. J. Shields Company; a'corporation, C. F. Adams and Security Savings and Trust Company of Portland, Oregon, a corporation.
September 24th a summons was issued against all of said parties. October 16, 1896, the sheriff of Latah county made return on said summons, not finding within the state Pauline E. Maupin, Thomas M. Morgan and Eachel Morgan and others of" the defendants. May 17, 1897, an affidavit for publication of summons was made by Edwin T. Coman, one of the attorneys for the plaintiff, and on the same day the court made the order-for such publication. December 7th proof of such publication was made and on the same day default was taken against the>. 'defendants not found as shown by the summons returned- by. the sheriff, and decree of foreclosure and sale was entered: against the defendant, Pauline E. Maupin, and against said-land; order of sale placed in the hands of the sheriff- of. said county for the sale of said land, which was returned and, filed without any action shown by the return on the thirteenth day o-f January 1898. December 7th plaintiff’s attorney moved to vacate the decree of foreclosure and sale heretofore entered, and January 13, 1898, the court granted the motion and made the order.
On the nineteenth day of May, 1902, the court made its findings, conclusions, decree of foreclosure and sale. August 2d, the findings, conclusions and decree were filed for record. August 4th the court ordered the sale of said land by the sheriff*
At the sale of the property under the foreclosure proceedings, George Thorp was the purchaser, and after the time for redemption had elapsed he received his deed.
These facts are obtained from the record and from the state--, ment of counsel for appellant and respondent.
October 6, 1903, respondent George Thorp, through his counsel, appearing specially, filed the following motion: “Now comes Geo. Thorp, respondent in the above-entitled action, and appearing specially for the purpose of the motion and none other, moves this honorable court to dismiss the appeal in the-above-entitled cause and for such other and further order as may be just in' the premises. This motion is based upon the ground -, that the -order from which said appeal is prosecuted is not an appealable order, and secondly that the court has no jurisdiction to - hear and determine said appeal. Said motion will be based on thé records, papers and files in the above-entitled. cause.55
In support of this motion coimsel for respondent cites California etc. R. R. Co. v. Southern Pac. R. R. Co., reported in 65 Cal. 295, 4 Pac. 13. The entire opinion is short. It says:': “This is an appeal from an order denying a motion made by the. defendant to' set aside the final order of condemnation made in
In Davis v. Donner et al., 82 Cal. 35, 22 Pac. 879, the syllabus says: “An order granting a writ of assistance is appealable as being an order made after final judgment, but a refusal to grant a motion of a party to the action to set aside such order is not appealable and an appeal therefrom will be dismissed. The mere negative action of a court declining to disturb its final decision is not reversible.” This syllabus is fully carried out by the opinion.
Counsel for appellant in opposition to this motion call our attention to People v. Grant et al., 45 Cal. 97. We quote from the syllabus: “One who is not a party to the record cannot appeal from an order granting a writ of assistance. Such person must move to vacate the order granting the writ, and in that way place himself on the record, and then if the motion is denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion is denied, take his appeal.”
In the case of the Mayor and Common Council of the City of San Jose v. Robert Fulton et al., 45 Cal. 316, the syllabus says: “When application is made for a writ of assistance under a sheriff’s sale enforcing the lien of a tax, notice should be given to the defendant and also to the terre tenant, if there be one, who will be disturbed by execution of the writ. An appeal lies from an order refusing to vacate an order granting a writ of assistance. A motion may be made to vacate an ex parte order granting a writ of assistance.”
It would seem from these decisions that the rule in California is that if a party were not a party to the suit at the time of the issue of the writ of assistance he may come in and file his motion, as was done in the case at bar, and ask to have the order set aside, and in case of refusal appeal from the order denying his motion. On the other hand, if a party to a suit at the time of the issue of the writ, he would be required to appeal from
' It would seem harsh to hold that one who has never been a party to the action should be precluded from a hearing on a ihotion to vacate and set aside the order granting the writ. This is especially true when it is the only way in which he could roach 'the order complained of. The motion to dismiss the appeal is denied.-
This brings us to a consideration of the motion of appellant to set aside the writ of assistance. The motion follows: “Now comes J. L. Smiley, by his attorney, A. J. Green, and moves the court to set aside the writ of assistance issued by the said court in the above-entitled action on the twelfth day of May, 1903, in which said order states that the said J. L. Smiley had come into the possession of said land under direction of the defendants in said cause since the commencement of this action. Said' motion will be based upon the affidavit of J. L. Smiley and record evidence showing that the said J. L. Smiley purchased said land of the legal owner for a valuable consideration on February 2, 1894, and has resided upon said land ever since, and has had no notice of said action or of any action against said land.”
The fact that the court did not sustain this motion is assigned as error. We are only called upon to pass upon the question raised in the lower court. In view of this conclusion, what do we find was presented to the lower court by this motion?- Tó do this we must examine the affidavit in support of the motion. It is alleged in both motion and affidavit that appellant secured his deed from Thomas M. Morgan and wife on or about the second day of February, 1894, and by the record' shown that such deed was not filed for record in Latah county until the thirteenth day of May, 1903, after he was shown the sheriff’s deed to said premises to George Thorp. Appellant insists that he should have been made a party to the foreclosure proceedings. This might, and doubtless would be true in the absence.of section 4520 of our statute, which, among other things, says: “No person holding a conveyance from, or under the mortgage of the property mortgaged, or
This motion is based upon the theory that the writ of assistance should be set aside, for the reason that appellant had purchased the land, lived upon it and paid the tax due for a number of years and had not been made a party to the action. He says he knew nothing of the pendency of the suit, but this does not excuse him from the requirements of the section of the statute above referred to. Had he placed his deed upon the records of the county there could and would be no question but that he would have been made a party defendant, and if not, then he could have his remedy in the courts.
The motion to set aside the writ of assistance is denied, with costs to respondents.
Rehearing
ON REHEARING.
MILLS v. SMILEY.
After the filing of the opinion in this case the appellant presented a petition for a rehearing, urging strongly the want of jurisdiction in the lower court to issue the writ of assistance complained of in the case. Hpon that petition a rehearing was granted and the case was again argued at the March term of this court. Prior to the last argument the respondent filed another motion to dismiss the appeal based .on the grounds that notice of appeal was not served upon A. L. Mills, Pauline E. Maupin, Samuel Geer, Thomas M. Morgan, Eaehael Morgan, M. J. Shields Company, a corporation, C. F. Adams and the Security Savings and Trust Company, or either of them. All of these parties were parties to the original foreclosure proceedings. It is claimed that upon the authority of Titiman v. Alamance Min. Co., ante, p. 240, 74 Pac. 529, and Baker v. Drews, ante, p. 276, 74 Pac. 1130, decided by 'this court, the appeal should be dismissed. This ease does not fall within the rule announced in those cases, for the reason that this appeal is not taken from the judgment of- foreclosure
Upon the reargument of this case much stress has been placed on the insufficiency of the judgment-roll in the original case to show jurisdiction in the court to render the judgment and decree upon which the sale to Thorp was made and for the enforcement of the terms of which sale the writ was issued. At the first hearing our attention was directed principally to appellant’s right to appeal in such case, and the application of the .provisions of section 4520 of the Eevised Statutes to a party ■in possession holding an unrecorded deed at the time suit is commenced, and therefore the question of jurisdiction was not considered by us in the former opinion.
Upon the hearing before the district judge on the motion to vacate and set aside the writ of assistance, the judge had before him the judgment-roll in the original foreclosure proceeding, the petition for writ of assistance, the writ of assistance, notice of motion, motion and the affidavit of A. J. Green, together with the deed of conveyance from Thomas M. Morgan and wife to the appellant Smiley, and the record on appeal contains all the papers used upon the hearing in the lower court. For the purpose of ascertaining whether or not the writ of assistance was properly issued, we will look to the record made in the foreclosure suit to see ifithe court had obtained jurisdiction to enter the decree therein. (Vermont Loan etc. Co. v. McGregor, 5 Idaho, 510, 51 Pac. 104.)
This return was made on the sixteenth day of October, 1896, and on the twenty-seventh day of May, 1897, an affidavit for publication of summons was made and filed as follows:
“Edwin T. Coman, being first duly sworn upon oath,- deposes and says that he is agent and one of the attorneys for the plaintiff in the above-entitled action; that due and diligent search has been made for the defendants Pauline E. Maupin, Thomas M. Morgan, Richael Morgan, C. E. Adams and the Security Savings and Trust Company of Portland, Oregon, a corporation, and that said defendants cannot be found within the state of Idaho.
“EDWIN T. COMAN.”
And on the same day that the affidavit was made the district- judge entered his order for publication of summons as folJows:
“This cause coming on to be heard this seventeenth day of May, 1897, before the Honorable W. G. Piper, judge of the above-entitled court. The court having before it the files in the cause including the original ^summons with the sheriff’s return thereon, and the affidavit of Edwin T. Coman, one of the attorneys, for the plaintiff, and it appearing from the files and affidavit that the defendants Pauline E. Maupin, Thomas M. Morgan, Rachael Morgan, C. E. Adams, and the Security Sav
“Done in open court this seventeenth day of May, 1897.
“W. G. PIPER,
“Presiding Judge.”
The summons was thereafter published in the “Mirror,” of Moscow, and proof thereof was made and filed on the seventh day of December, 1897. None of the defendants appeared and default was entered against each and all of them, and judgment thereafter was rendered and entered and proceedings had as set forth in the original opinion in this ease.
By the provisions of our statute, constructive service may be made in certain eases upon the happening of the contingencies therein enumerated. Section 4145, Revised Statutes, provides : “When the person on whom the service is to be made resides out of the territory, or has departed from the territory, or cannot, after due diligence, he found within the territory, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier, or secretary within the territory, and the fact appears by affidavit to the satisfaction of the court or a judge thereof, or a probate judge, and it also appears by such affidavit, or by the verified complaint on file that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order that the service he made by the publication of the summons.” This statute enumerates the ultimate facts which the evidence submitted to the judge by “affidavit” must enable him to find before he can make the order. This affidavit is not in the nature of a pleading, but is strictly the evidence the plaintiff is required to submit to establish the
This statute became the.subject of judicial consideration in California at an early date, and in Ricketson v. Richardson, 26 Cal. 154, the court said: “It is not sufficient to state, generally, that after due diligence the defendant cannot be found within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence or the facts showing that he is a necessary party, should be stated. To hold that a bald repetition of the statute is sufficient, is to strip the court or judge to whom the application is made of all judicial functions and allow the party himself to determine in his own way the existence of jurisdictional facts — a practice too dangero'us to the rights of defendants to admit of judicial toleration. The ultimate facts stated in the statute are to be found, so to speak, -by the court or judge from the probatory facts, stated in the affidavit, before the order for publication can be legally entered ” .
This case has been repeatedly cited with approval by state and federal courts, as may be seen by an examination of the
■ In Strode v. Strode, 6 Idaho, 67, 96 Am. St. Rep. 249, 52 Pac. 161, this court announced in the syllabus to the case and as the rule of law in this state, that: “Unless affidavits are filed showing that all of the requirements of the statute authorizing service by publication have been complied with, the court has no jurisdiction to enter judgment and decree.”
' We are aware that a somewhat different rule from that herein announced has been adopted by some courts, but we do not think it good law and cannot follow it.
‘ It will be seen from an inspection of the affidavit mádé- in this ease for publication of summons that no pretense was made at showing the residence of any of the defendants, nor was it alleged that they were nonresidents of the state, but simply charged “that said defendants cannot be found within the state of Idaho.” This was a material fact and should have been shown. In making affidavits of this kind it should appear therefrom whether the defendant is a nonresident of the state or conceals himself to avoid service, or, if a resident of the state, is absent therefrom and cannot be found. The party making the affidavit must certainly be able to state the last known place of residence of the defendant or the fact'that he has been unable to find where the defendant does actually reside. He can at least state the facts of the case. Section 4146 •of the Revised Statutes provides some of the things that the order of the judge must direct, and, among other things, says: .“In cases of publication where the residence of a nonresident •or. absent defendant is known, the court or judge must direct •a copy of the summons and complaint to he forthwith deposited in the postoffice, directed to the person to he served at his place of. residence.” It is therefore made necessary that the affidavit
It has been suggested by the respondent that since, according to appellant’s own contention, the defendants Maupin and Morgan and wife had parted with their legal title to the land mortgaged and had conveyed the same to the appellant, who had failed to record his conveyance, that it therefore became necessary to serve those defendants. The trouble with this argument is that it proves too much. If respondent’s theory is correct that the provisions of section 4530 of the Eevised Statutes apply to a case like this, and that it was unnecessary for the plaintiff in the foreclosure proceeding to serve the owner of the legal title who held an unrecorded deed, and that it was also unnecessary to serve his grantors who had executed the
It is clear to us that they were under the necessity of either serving the holders of the record title or the holders of the legal title, or both. In this ease they did neither. The service by publication upon the defendant Maupin and those defendants through whom the legal title passed from Maupin to Smiley was void and ineffectual for any purpose, and no pretense is made at ever having served Smiley, in whom the legal title had been vested ever since February 2,1894.
Our examination of the record in this case convinces us that the court was without jurisdiction to enter the judgment and decree under which the sale to Thorp was made, and the court was therefore without jurisdiction to issue the writ of assistance complained of in this case. (Vermont Loan & Trust Co. v. McGregor, supra.) The order appealed from is vacated and the cause is remanded, with instructions to the trial court to vacate and set aside the writ of assistance in this ease.
Each party to pay his own costs.