112 P. 1070 | Mont. | 1910
delivered the opinion of the court.
On April 30, 1909, A. L. Smith commenced an action in the district court of Lewis and Clark county against Eosell C. Collis and Mary Collis to quiet title to certain real estate situate in the city of Helena. On May 1, Smith made and filed an affidavit for publication of summons, in which, among other things, it is alleged that the defendants are nonresidents of Montana and reside at Canastota, Oneida county, New York. On the same day the clerk of the court issued an order for publication, which directs that summons be published in the “Montana Daily Eecord” “at least in four numbers of said paper, which shall be published in successive weeks.” Proof of publication was made by the foreman of the paper by affidavit, in which it is
1. The first ground of attack is that the summons was not published for the period required by law. As we understand counsel for appellants, their contention is that the period of publication must cover four full weeks, or twenty-eight days. Section 6521, Revised Codes, provides that the summons shall be published “once a week for four successive weeks.” In construing statutes containing similar provisions, different courts have reached different conclusions. Market National Bank v. Pacific National Bank, 89 N. Y. 397, and Calvert v. Calvert, 15 Colo. 390,
If our Code section, above, contained no other provision than the one quoted, we might experience some difficulty in determining its meaning. But to our minds the section itself furnishes the key to its own proper interpretation, in the last sentence which reads: “The service of summons is complete on the day of the fourth publication.” This is a legislative declaration that only four publications are required, if there is one in each of four successive weeks. “A week consists of seven consecutive days.” (Revised Codes, sec. 2030.) “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and •then it is also excluded.” (Sections 6219, 8067.) Every Sunday is a holiday. (Section 8065.) For the purpose of illustrating our view, let us assume that publication is made on the same day in each of four successive weeks, as, for instance, on the 3d, 10th, 17th and 24th. The greatest period of time which can elapse between the first and fourth publications is twenty-one days, under the rule of computation prescribed by the Code above. Or assume the most extreme case which we can imagine: That the publication occurred on the 4th (although that day is Sunday), 13th, 22d, and 31st of the present month of December, 1910. The greatest period of time which can elapse between the first and fourth publications is twenty-seven days, according to the same rule. Since section 6521 requires only four publications, and requires that there shall be at least one in each of
Appellants refer to McLean v. Moran, 38 Mont. 298, 99 Pac. 836, as supporting their contention. In that case the question now before us was not involved or considered. The controversy there aróse over the meaning to be given to the sentence in section 6521 above, which reads: “When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the postoffice.” That a construction of this language was the only matter for determination will appear conclusively from the opinion. (Page 299.) The defendants in that ease were nonresidents. An order for the publication of summons was regularly made, but personal service was had upon the defendants in ‘ Pennsylvania, under the sentence of the section just quoted. The plaintiff had a copy of the summons and complaint delivered to defendants on April 16, 1908, and their default was entered on May 8. The lower court held that the default was entered prematurely, and this view we adopted; in doing so, however, we inadvertently said: “The person so served shall have the full period of four weeks and twenty days within which to make his appearance.” We should have said: “The person so served shall have the full period of publication and twenty days within which to make his appearance. ” If in view of the one question considered in that case a modification of our holding is necessary, it is now made to conform to the suggestion above.
3. Objection is made to the affidavit for publication upon the ground that the statements (1) that the plaintiff has a cause of action against the defendants, and (2) that defendants are necessary or proper parties to the action, are made upon information and belief. Paraphrased, section 6520 of the Revised Codes reads: “When the person on whom the service of a summons is to be made resides out of the state, and an affidavit stating this fact is filed with the clerk, and such affidavit also states that a cause of action exists against such nonresident defendant, and that he is a necessary or proper party to the action, the clerk shall cause the service to be made by publication.” It is insisted that the statute requires each of the statements above to be made positively, or, in other words, as we understand this contention, it is that the party making the affidavit must make each of these statements as a fact of his own knowledge, and in this view counsel for appellants are not altogether without authority to support them. (Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 Pac. 498.) The reasoning of that case, however, does not appeal to us. To illustrate our view further: Let us assume that Smith, the plaintiff in this action, had stated positively in his affidavit for publication that a cause of action exists against the defendants Rosell C. Collis and Mary Collis, and that each is a necessary or proper party to this action. Assume, then, that the defendants had appeared and raised the question of the sufficiency of the complaint (which we will assume stated all the facts correctly) and also the question of proper or necessary parties defendant, and the court had decided, first, that the complaint did not state a cause of action, and, second, that neither defendant was a necessary or proper party to the action, and this decision became final, could anyone claim
Whenever the statute, either in express terms or by implication, requires a person to make a statement which from the very nature of things can only be made on information and belief, an affidavit in that form meets the demands of the statute. It is impossible for anyone to swear positively that a particular person is a nonresident of this state, or to say that a nonresident resides at a particular place. In requiring these facts to be stated, the statute does not demand the impossible, and certainly does not contemplate that a false statement shall be made. It does intend that the person making the affidavit for publication shall state these facts upon information and belief—the only possible ground upon which they can be made. In this present case the plaintiff in his affidavit refers to his complaint on file, and says: “ (3) I have fully and fairly stated the facts of the case to Messrs. Carpenter, Day & Carpenter, attorneys of this court in the city of Helena, Montana, my attorneys, and I am by them informed, and I verily believe, that I have a good cause of action in this suit against the said defendants, as will fully appear by my verified complaint herein, to which reference is hereby made, and the said defendants Rosell C. Collis and Mary Collis are necessary and proper parties defendant thereto, as I am advised by my said counsel after such statement made as aforesaid, and as I verily believe.”
We hold that the affidavit is sufficient, and the authorities sustaining this conclusion will be found in note to 17 Encyclopedia of Pleading and Practice, 61.
4. Appellants contend that the district court should have vacated the judgment, opened the default and permitted the defendants to answer, for the reason, as it is claimed, the record 'discloses that the plaintiff practiced deceit in procuring the order for publication. If we understand counsel for appellants
5. It is insisted that the application to set aside the default was not addressed to the discretion of the trial court, but should have been granted as a matter of right. Section 6589, Revised ■Codes, provides: “(1) The court may likewise in its discretion # * # relieve a party * * * from a judgment * * * taken against him through his mistake, inadvertence, surprise or excusable neglect. * * * (2) When from any cause the summons in an action has not been personally served on the defendant, the court may allow on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.” This section deals with two classes of persons; the first comprises defendants who have been personally served with summons but through mistake, inadvertence, surprise or excusable neglect have defaulted. As to this class the rule is uniform that a motion to set aside the default is addressed to the sound, legal discretion of the trial court, and to move such discretion in favor of the defaulted party, he must present a valid excuse for his mistake, inadvertence or neglect; must show that he has moved promptly to set aside the default; that he has prima facie a good defense on the merits; and that the judgment against him, if permitted to stand, will affect him injuriously. (Bowen v. Webb, 34 Mont. 61, 85 Pac. 739.) The second class of persons dealt with by the section above comprises those defendants upon whom there has been constructive service of summons and who have defaulted. May a person belonging to this class have the default set aside as a matter of right if he applies within one year from the date
There are very few states which have statutes similar to our own. There are, therefore, few decided cases upon the question propounded. The statutes of Kansas, Nebraska and Iowa in terms confer the right upon defaulting defendants who bring themselves within the law. The statute of Tennessee presents some resemblance to the statutes of the states just named, but little, if any, to our own Code provision. The North Carolina statute is similar to the first portion of ours, but so far as our investigation discloses, it does not contain any provision corresponding to that portion of our Code section now under consideration. Minnesota has a provision somewhat similar to ours, and California a statute the same as our own. The Minnesota court first inclined to the view that an application under this provision of the law was addressed to the discretion of the court; but later, in Lord v. Hawkins, 39 Minn. 73, 38 N. W. 689, said: “The construction we place on section 66 is that it provides to the defendant who comes within its terms, and who shows that he has a good defense, and who has not lost his right by laches, an opportunity to defend as a matter of right, and not of discretion.” In Mueller v. McCulloch, 59 Minn. 409, 61 N. W. 455, that court said: “Although an application of this character, made under the provisions of 1878, G. S., Chapter 66, section 66, is largely addressed to the discretion of the court, it ought not to be favorably considered when the presumption that the party in default has been diligent after receiving notice of the pendency of the action is expressly and conclusively rebutted, as it was in this instance. ’ ’ In Bogart v. Kiene, 85 Minn. 261, 88 N. W. 748, the court said: “The motion was made under the provisions of G. S. 1894, section 5206 [same as section 66 referred to in the last case]; and defendant insists that he was entitled to the relief asked for as a matter of right, and that the court erred in denying his motion. There is no question, under the decisions of this court, that an application for leave to defend, where default judgment has been entered
After considering the decided cases from Kansas, Kentucky, Minnesota, Nebraska and North Carolina, Mr. Freeman in his work on Judgments says: “Notice of the defendant’s application must be given to the adverse party, and the defendant must show that he had no actual notice of the pendency of the action in time to appear and make his defense. On complying with the conditions of the statute, the moving party secures an absolute right to have the judgment opened, which the court has no discretion to deny.” (1 Freeman on Judgments, 4th ed., see. 105.) In California the same doctrine is announced, except that the burden is placed upon the plaintiff to show laches on the part of defendant. (Gray v. Lawlor, 151 Cal. 352, 90 Pac. 691, 12 Ann. Cas. 990.) The practical effect of the California court’s holding is that the defendant, who has not been personally served with summons, shall have at least one year more time within which to answer to the merits than is given to a defendant personally served, although the statute prescribes that in either case the
In justification of its position, the California court in the case above said: “Where he [nonresident defendant] has had no personal service, there is, with respect to his right to relief in such eases, no presumption of knowledge, or of inexcusable-negligence, on his part, and he is only required to show the lack of personal service.” That may or may not be true.' Section 6521 above provides: “In case of publication, where the residence of a nonresident or absent defendant is known, the clerk must forthwith deposit a copy of the summons and complaint in the postoffice, directed to the person to be served at his place of residence.” Section 7962 provides that it will be presumed “that a letter duly directed and mailed was received in the regular course of the mail.” The record in this case discloses that on the day after this action was commenced, the clerk of the court in Helena mailed to each of the defendants at his known place of residence a copy of the summons and complaint, and the presumption, therefore, must be indulged that defendants had actual notice of the pendency of this action a considerable time before their default was entered. In a case of this character, then, the rule announced by the California court does not have application; while in Minnesota, Iowa, Kansas, Nebraska and Texas actual knowledge on the part of the nonresident defendant has been quite uniformly held to be sufficient to defeat an application to set aside a default after judgment. (Clark v. Tull, 113 Iowa, 143, 84 N. W. 1030; Stover v. Hough, 47 Neb. 789, 66 N. W. 825; Bogart v. Kiene, above; Cutler v. Button, above; Satterlee v. Grubb, 38 Kan. 234,16 Pac. 475; 23 Cyc. 915; 1 Black on Judgments, sec. 313.)
Upon the theory of the statute which we adopt, a defaulting nonresident defendant not personally served must show (1) that he did not have actual notice of the pendency of the action in time to make a defense; (2) that he proceeded promptly to have the default set aside; (3) that he has a prima facie defense upon the merits; and (4) that the judgment, if permitted to stand, will affect him injuriously. In this view of the law, the appellants here failed to meet the second requirement altogether, and seek to show compliance with the first, by what, in the very nature of things, was hearsay evidence. We cannot say that
Affirmed.