Nоrma Mae RYKEN et al., Plaintiffs and Appellees, v. The STATE of South Dakota et al., Defendants, and E. W. Boyles, Elloween G. Boyles and Frank Biegelmeier, Defendants and Appellants.
No. 13004.
Supreme Court of South Dakota.
May 6, 1981.
Considered on Briefs Nov. 26, 1980.
In State v. Doherty, 261 N.W.2d 677, 681 fn. 7 (S.D.1978), we specifically adopted Sarubbi and expressed our dislike for the subsection B type of agreement made in the present case. In the context of this case, where the trial court repeatedly advised appellant of his rights and of the fact that it was not bound by the agreement, we hold that the trial court‘s nonacceptance of the recommended maximum five to six years’ sentence did not constitute a rejection of aрpellant‘s plea bargain with the State which would have afforded him a right to withdraw his plea under Sarubbi. In order to avoid misleading defendants, lawyers should proceed with extreme caution when bargaining for sentence recommendations as provided for in
Accordingly, we affirm.
All the Justices concur.
Robert W. Hirsch of Goetz, Hirsch, Haar & Klimisch, Yankton, for defendants and appellants.
HENDERSON, Justice.
ACTION
This apрeal stems from an uncontested quiet title judgment entered in Yankton County. Appellants E. W. Boyles and Elloween G. Boyles (Boyles) appeal from the trial court‘s order denying Boyles’ motion to vacate this judgment in favor of appellees Norma Mae Ryken, John M. Ryken, and Lester L. Ryken (Rykens). Appellant Frank Biegelmeier (Biegelmeier) filed a motion in joinder pursuant to
FACTS
On April 28, 1977, Rykens obtained a judgment from the trial court quieting title to certain real property located in Yankton County, South Dakota. Prior to this judgment, Rykens caused a publication of a summons to be made in a Yankton newspaper. Boyles and Biegelmeier were treated as unknown defendants. Rykens contend that they followed this procedure due to their inability to discover any filings or cross-indexings in the applicable public records which reflected any color оf title conflicts with respect to the realty in question.
Approximately one year after the quiet title judgment was entered, Boyles filed a motion pursuant to
ISSUE
Appellees having proceeded by publication and not by personal service, did the trial court err in denying Boyles’ and Biegelmeier‘s motion to relieve them from the trial court‘s final judgment of April 28, 1977? We hold that it did.
Boyles and Biegelmeier timely filed a motion pursuant to
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
. . .
(4) The judgment is void;
. . .
(6) Any other reason justifying relief from the opеration of the judgment.
Boyles and Biegelmeier contend that they were not properly served with process regarding the April 1977 quiet title action; thus, the trial court was acting without proper jurisdiction and its judgment quieting title in favor of Rykens should be rendered void. Johnson v. Bruflat, 45 S.D. 200, 186 N.W. 877 (1922). In support of their position, Boyles and Biegelmeier rely on
[In a quiet title] action all persons who have or claim to have or who appear of record to have ever had any interest or estate in, claim to, or lien or encumbrance upon the рremises described in the summons and complaint or any part thereof . . . may be made defendants by name, if known.
See also
Where the person on whom the service of the summons, writ, order, or decree is to be made cannot, after due diligence, be found . . . [the] court or judge may grant an order that the service be made by publication.
It is this Court‘s task to determine whether the trial court‘s ruling that Boyles and Biegelmeier were not required to receive personal service prior to the April 1977 quiet title judgment was clearly erroneous.
The test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locate interested parties. Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961). In Coughran v. Markley, 15 S.D. 37, 40-41, 87 N.W. 2, 3 (1901), this Court stated:
Judgments which exclude persons from any interest in or lien upon land should not be rendered without actual notice, when by the exercise of reasonable diligence actual notice can be given. There should be either actual notice, or an honest and reasonable effort to give it.
In this state, the due diligence standard is applicable to quiet title actions. Berry v. Howard, 33 S.D. 447, 146 N.W. 577 (1914); Grigsby v. Wopschall, 25 S.D. 564, 127 N.W. 605 (1910). Whether a party has exhausted all reasonable means available for locating interested parties must be determined by the circumstances of each particular case. Cone v. Ballard, 68 S.D. 593, 5 N.W.2d 46 (1942).
We now turn to the circumstаnces of this particular case, dealing with each appellant separately. Boyles’ interest in the realty stems from a warranty deed from Florence J. Edmunds and Harold E. Edmunds dated October 2, 1969. Filed and recorded with the Yankton County register of deeds on November 4, 1971, this deed conveyed to Boyles:
The South half of Lot five, and all of Lots Six, Seven and Eight, Block forty-two, in that part of the city of Yankton, platted and known as J.W. Glazier‘s Addition
and
Outlot 22 of County Auditor‘s Plat of Outlots, in the city of Yankton, as platted in Book G, page 28.
and
All interest grantors may hаve in all that land south of and adjacent to said Lot eight and Outlot 22 above described, beyond the River Bluff.
Rykens do not deny that this deed was on record at the time of the initiation of the quiet title proceedings. It is argued by Rykens, however, that it was impossible to tell from the rеcord books maintained by the register of deeds whether or not the realty involved in the quiet title action included realty claimed by Boyles. The crux of the dispute stems from the last line of the warranty deed conveyed to Boyles: “All interest grantors may have in all that land south of and adjacent to said Lot eight and Outlot 22 above described, beyond the River Bluff.” The realty involved in the quiet title action is located directly south of Lot eight, bordering the Missouri River. This realty is unplatted while the realty conveyed in the deed to Boyles is platted. Upon an inspection of the documents at the register of deeds office, and the discovery of the language in the deed to Boyles, it would be unreasonable not to consider Boyles as interested parties who should have been named as defendants in Rykens’ complaint and entitled to personal service. Accordingly, we rule that Rykens did not exercise due diligence in discovering Boyles’ interest in the quiet title action. Boyles were entitled to personal service.
Biegelmeier‘s interest in the realty is based upon a tax deed from Yankton County to Biegelmeier dated July 1, 1954. This deed was not recorded in the Yankton County register of deeds office until approximately nine months after the quiet title judgment was entered on behalf of Rykens. The deed was, however, made a mattеr of public record in the Yankton County Treasurer‘s office in July of 1954.
Possession of a tax deed vests in the grantee a fee simple estate in the realty involved.
The order of the trial court denying Boyles’ motion to vacate and Biegelmeier‘s joinder motion is reversed, and these proceedings are remanded for a determination on the merits.
WOLLMAN, C. J., and DUNN and FOSHEIM, JJ., concur.
MORGAN, J., dissents.
MORGAN, Justice (dissenting).
I dissent.
The issue of sufficiency of service by publication as opposed to personal service hinges on knowledge by appellees of any claim or appearance on record of any interest or estatе in the premises as described in the complaint.* I will deal with the moving parties separately.
As to the motion of appellant Boyles, I do not find the trial court‘s findings of fact clearly erroneous. The trial court found that the property described in the deed, “all interest the grantors may have in all that land south of and adjacent to said Lot eight and Outlot 22 above described, beyond the river bluff,” had never been platted. That description is a nullity. It does not describe a governmental subdivision, nor any specific portion thereof. It is not even a metes and bounds description. There is absolutely nothing for a register of deeds to use to index such a description. A title examiner would have no means of ascertaining if the transfer had been made, short of reviewing every deed in the register. That hardly falls within the “reasonable means” test. Thе findings clearly support the trial court‘s conclusion of law “that a diligent
As to the motion of appellant Biegelmeier, we have a different problem. No one argues that the County Deed conveying the property to Biegelmeier was not on record. Therefore, the trial court was right insofar аs it found that the Register of Deed‘s records showed that the property was still in the name of Yankton County, which incidentally was made a party to the action. The trial court erred, however, when it neglected to find that the sale of county-owned tax property was on record in the office of the County Auditor as per
I would then dispose of the other two issues raised by appellants in this manner. First, the procedural issue of entry of findings of fact and conclusions of law was not raised before the trial court. No motion was made to vacate the findings in order to give the trial court an opportunity to cоrrect any error, if there was one. Second, the suggestion that by taking the evidence it did the trial court impliedly vacated the quiet title judgment is wholly unsupported by the record. At the motion hearing, the transcript repeatedly refers to the only issue being a question of law as to whether the proper parties were served. The trial court clearly had to take notice of the descriptions of the various parcels claimed by the parties to determine that question. I see no hint of an implied vacation of the judgment.
I would therefore affirm the order of the trial court as to both appellants.