Liebhant v. Lawrence

STRAUP, J. The real estate in question, owned by the plaintiff in 1902, and prior thereto, was sold for taxes for that year. Tbe certificate of sale was assigned to the defendant in 1907, who, in February of that year, obtained a tax deed. On the 4th day of October, 1907, be commenced an action in the district court of Salt Lake County, where the land is, against the plaintiff and others to quiet title. The claimed service of summons on the plaintiff was by publication. On the 28th day of December, 1907, the defendant obtained a judgment against the plaintiff and others by default, quieting the title in him. The plaintiff, on the 12th day of April, 1909, brought this action in equity to set aside the former judgment, to permit him to plead to the merits, to have adjudged the ownership of, and right of possession to, the property, and to have the title thereof quieted in him. This relief was asked on the alleged grounds that the affidavit upon which the order for publication of the summons was based was defective and insufficient; that the averment in the affidavit that plaintiff’s “residence was unknown to the affiant” was falsely made; that neither a copy of the summons nor of the complaint was mailed to the plaintiff, and no sufficient reasons appearing why that was not done; that be was without knowledge, and bad no notice, of the pendency of the action until long after the entry of the judgment; that, as soon as be learned of it, negotiations were entered into between him and the defendant to set aside the judgment; and upon allegations tendering a meritorious defense. The court found “that the service of the summons in” the former action “was duly and regularly bad on” the plaintiff “by publication thereof in accordance with the requirements of law, and that the default and entry of judgment in said action was duly and regularly bad;” that the plaintiff, within less than one year after the entry of such judg — 247 — ment, “bad due notice and knowledge of the entry of said judgment; and that the said plaintiff herein did not a.t any time within one year after the entry of the judgment in said entitled cause appear therein and move the court to set aside the default entered against him, and permit him to answer to the merits in said action.” Upon these findings, the court dismissed the plaintiff’s complaint, and entered a judgment in favor of the defendant, from which the plaintiff has prosecuted this appeal. The findings are largely in the nature of conclusions. The evidence, however, with respect to them is before us. The plaintiff was a resident of Denver, Colo., and had resided there for about twenty-five years. In 1902, and prior thereto, he was the owner of the property described as “lots 24 and 25, block 2, Denver Place, an addition to Salt Lake City.” In that year the property was sold for taxes, the certificate of sale assigned to the defendant in 1907, and a tax deed given to him in February of that year. In deeds of conveyance of the property to plaintiff, made and recorded in 1897 and in 1900, his residence is stated to be in Denver, Colo. The assessment rolls show that the property, in 1901, and to and including 1907, was assessed to plaintiff, “Loui3 F. Liebhardt, care of Liebhardt Commission company, Denver, Colorado.” The plaintiff paid the taxes on the property for the years 1903 to 1908, both inclusive. In October 1907, the defendant brought an action against the plaintiff and others to quiet title, and on the 28th day of December of that year obtained a judgment by default. Service of summons was attempted on plaintiff by publication. Graham Lawrence, a brother of the plaintiff in that action, on the 19th day of October, 1907, made and filed an affidavit therein that: “I am the agent and attorney in fact for the plaintiff, Franklin L. Lawrence; that I am a resident of Salt Lake County, Utah; that the plaintiff is absent from the said state, and that this affidavit is made on his behalf;” that the defendant, the plaintiff in this action, “Louis F. Liebhardt,” and others (naming them), “each reside out of the State of Utah; and that the place of residence of each of the said — 248 — defendants is to the affiant unknown.” The affidavit further recited that the action was brought to quiet the title in the plaintiff in that action (the defendant in this), giving a description of the property, and stating that the defendants named in that action were necessary and proper parties. Upon this affidavit the county clerk made an order, directing a publication of the summons to be made in Truth, a local weekly periodical, the “newspaper” designated as most likely to give notice to the plaintiff and other named defendants in that action. Neither a copy of the summons nor of the complaint was mailed to the plaintiff; nor is it made to appear that any inquiry or investigation was made or any diligence used to ascertain his place of residence. It was assumed and found by the clerk that the place of his residence was unknown, solely upon the averment in the affidavit of Graham Lawrence that plaintiff’s place of residence- was unknown to him — “to the affiant unknown.” For that reason, a copy of the summons and complaint was not mailed to plaintiff, and no effort made to do so. The plaintiff had no knowledge that the property had been sold for taxes until the 31st day of October, 1908, when the county treasurer of Salt Lake County wrote him, stating that: “We herewith return tax receipt, the property being this year assessed to- Franklin Lawrence, who has a tax deed on account of sale for taxes in 1902. He is represented in Salt Lake by Addison Gain, if you wish to communicate with him.” The plaintiff thereupon wrote Addison Gain. Graham Lawrence, on December 2, 1908, answered: “Your letter to Mr. Addison Gain forwarded to me today. I have been waiting for my brother (Franklin Lawrence, the defendant) to come in. He is anxious to settle up all these old tax matters; and I expect him in here by the 12th or 15th and will procure you a quitclaim deed as soon as he comes in.” On December 24, 1908-, Graham Lawrence again wrote plaintiff in response to a letter from him: “Yours of the 21st at hand, and in reply will say that my brother was in day before yesterday. I talked the matter over thoroughly with him. He stated that he got a decree quieting title in — 249 — this matter in a suit filed about two years ago.” This statement tended to mislead, for the time of the writing of the letter was but four days less than one year from the entry of the decree. The letter proceeds: “He had supposed that you had finally abandoned this property (notwithstanding the plaintiff had paid all of the taxes on the property from 1903 to 1908) and he could get no track of you. However, if you care to make what he would consider a reasonable offer either way for a quitclaim deed, even at this time, he will be willing to do what is right and will pay or accept a fair offer.” On February 4, 1909, and after the year had expired in which the plaintiff was permitted by motion to set aside the judgment and plead to the merits, Graham Lawrence again wrote to plaintiff that “there is absolutely no reason why you need be considered except as courtesy. . . . If you care to accept fifty dollars you are welcome to it under all the circumstances', but same is in nowise a necessity,” etc. The plaintiff testified that in the first part of November, 1908, he learned that an action had been brought by the defendant to quiet title. He did not then know that a judgment had been taken against him, but immediately made inquiries and began the correspondence referred to. The defendant’s judgment was had December 28, 1901. We have a statute (Comp. Laws 1907, sec. 3005) which provides that: “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 action, brought by the plaintiff, was commenced on the 12th day of April, 1909, about one year and three and one-half months after the defendant had obtained judgment in the former action. The court, finding that the service of summons on the plaintiff “was duly and regularly had” by publication in the former action, that within less than one' — 250 — year after tbe entry of such judgment he “had due notice and knowledge of the entry of said judgment,” and that he did not, within one year “after the entry of the judgment,” move the court to set aside the default and to permit him to answer to the merits, dismissed this action, and entered a judgment for the defendant. in so disposing of the case, the court must have been of the opinion that the remedy provided by section 3005 was exclusive, or that an action in equity is not broader than the remedy provided in that section, and that it likewise must be brought within one year after the entry of the judgment. The court did not find nor state any conclusions that the plaintiff was guilty of laches. The court disposed of the case on the theory that the plaintiff (the defendant in the former action), having been “duly and 1 regularly” served with summons by publication, and having had “notice and knowledge” within a year after the entry of the default judgment, and failing within that time to appear in that action and move the court to set aside the default, and to permit him to answer to the merits, could not thereafter maintain an action in equity to set aside the default judgment. In so disposing of the case, the court took no note of the allegations of the complaint, and made no findings with respect to the alleged false averment in the affidavit that the plaintiff’s place of residence was unknown; nor did the court consider or make any findings as to the making of any inquiry or investigation, or the using of any diligence by any one, to ascertain his place of residence, nor of the want of a showing to excuse the failure to mail to him a copy of the summons and complaint; nor did the court take note of the negotiations carried on between the parties, covering a period of about two months before the year had expired and about two months thereafter, in which the defendant had promised, before the year had expired, to give the plaintiff a quitclaim deed on just and reasonable terms. The action here brought was in the nature of a suit in equity to set aside a judgment obtained by fraud, and upon the grounds and for the reasons heretofore stated. It was a — 251 — direct, and not a collateral proceeding. We think under the circumstances disclosed, the action was proper. (Benson v. Anderson, 14 Utah, 344, 47 Pac. 142; Riddle v. Quinn, 32 Utah, 341, 90 Pac. 893; Dunlap v. Steere, 92 Cal. 344, 28 Pac. 563, 16 L. R. A. 361, 27 Am. St. Rep. 143 ;Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007; Estudillo v. Security L. etc., Co., 149 Cal. 556, 87 Pac. 19; State ex rel. Happel v. District Court, 38 Mont. 166, 99 Pac. 291, 129 Am. St. Rep. 636.) The next question to be considered is: Were sufficient facts made to appear to require the former judgment to be set aside upon the alleged grounds? We think so. Our statute (section 2949) provides: “When the person on whom the service of a summons is to be made resides out of the state, or has departed from the state, or cannot, after due diligence; be found within the state, or conceals himself to avoid the service of the 2, 3 summons; or when the defendant is a foreign corporation, having no managing or business agent, cashier, secretary, or other officer within the state, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought, and such affidavit also states that a cause of action exists against the defendant in respect to whom the service of the summons is to be made; or that be or it is a necessary or proper party to the action, the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof.” Tbe section following provides that: “The order of the clerk must direct tbe publication to be made ... in a newspaper designated by him as most likely to give notice to tbe person to be served. In case of publication, where tbe residence of a nonresident or absent defendant is known, tbe clerk must forthwith deposit a copy of tbe summons and complaint in tbe postoffice, directed to tbe person to be served at bis place of residence.” Section 2952 provides that tbe proof of tbe service of the summons and of tbe complaint shall be: “. . . 4. In case of publication, tbe affidavit of tbe publisher, or printer, — 252 — or Ms foreman or principal clerk, showing the same, and specifying the date of the first and last publications, and the affidavit of a deposit of a copy of the summons and complaint in the postoffijce as prescribed by law, and the order therefor, if such deposit shall have been required, by the person making the same.” It will be seen that by this statute the duty is imposed on the clerk to issue the order. In making it, he acts judicially. To grant the order and to account for the want of mailing a copy of the summons and of the complaint, two things were required to be made evident to the clerk; one that the plaintiff was a nonresident, and the other that his place of residence was not known. The affidavit recited that the plaintiff “resides out of the state of Utah,” and that his “place of residence is to the affiant unknown,” without stating means or opportunity of knowledge concerning the fact deposed, or the inquiry or investigation made, or the diligence used to ascertain his place of residence, or any facts upon which a want of knowledge of the place of his residence was based. Nor is it .averred that the plaintiff in the former action (the defendant in this) was ignorant of the plaintiff’s place of residence. Said the court in the case of Ricketson v. Richardson, 26 Cal. 149: “An affidavit which, merely repeats the language or substance of the statute is not sufficient. Unavoidably the statute cannot go into details, but is compelled to content itself with a statement of the ultimate facts which must be made to appear, leaving the detail to be supplied by the affidavit from the facts and circumstances of the particular case. Between the statute and the affidavit, there is a relation which is analogous to that existing between a pleading and the evidence which supports it. The ultimate facts of the statute must be proved, so to speafc, by the affidavit, by showing the probatory facts upon which each ultimate fact depends. These ultimate facts are conclusions drawn from the existence of other facts, to disclose which is the specific object of the affidavit. To illustrate: 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 suffi — 253 — cient is to strip the court or judge to whom the application is made of all judicial functions, and allow the party himself to deter-, mine in his own way the existence of jurisdictional facts — a practice too dangerous to the rights of defendants to admit of judicial toleration. The ultimate facts stated in the statute are to he 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 was approved and followed by the same court in the case of County of Yolo v. Knight, 70 Cal. 431, 11 Pac. 662. The fact that the statute here requires the clerk and not the judge to make the order can make no difference; for, in granting the order, whether the duty be imposed on the clerk or court, the person or tribunal granting it acts judicially. Of what probative force or evidentiary value is an ¡affidavit of one that the place of residence is unknown to him, who does not purport to have any knowledge of the fact deposed, either from personal knowledge or from inquiry or investigation? We think such an affidavit is defective, and is open to direct attack. (Bothell v. Hoellwarth, 10 S. D. 491, 74 N. W. 231; Nicoll v. Midland Svgs. L. Co., 21 Okla. 591, 96 Pac. 744; McLaughlin v. McCann, 123 App. Div. 67, 107 N. Y. Supp. 762; Thompson v. Circuit Judge, 54 Mich. 236, 19 N. W. 967; Mackubin v. Smith, 5 Minn. 367 (Gil. 296); Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576; Noble v. Aune, 50 Wash. 73, 96 Pac. 688.) Furthermore, there is some evidence to support the conclusion that, if the defendant did not have actual knowledge of the place of plaintiff’s residence, he had ready and convenient means of knowledge. True the affidavit was made by his brother, his agent and attorney in fact. But whatever knowledge or means of knowledge the defendant, the principal, had, must be imputed to the agent, the affiant, who made the affidavit on behalf of the principal. Notwithstanding the express charge that the averment in the affidavit of want of knowledge of plaintiff’s place of residence was falsely made, and some evidence adduced tending to support the charge, nevertheless, neither the defendant nor 4, 5 Graham, Lawrence took the witness stand. Thev both — 254 — remained silent, as did Addison Cain, the defendant’s representative referred to by the county treasurer. Whether the defendant or the deponent knew or did not know plaintiff’s place of residence, and whether the averment in the affidavit that his place of residence was “to the affiant unknown,” or to-the defendant unknown, was or was not true, were matters peculiarly within their knowledge. When evidence, though slight, as it is, tending to show means of knowledge, sufficient to imply knowledge on their part, is adduced, and they remain mute when they could have taken the witness stand and disclosed what their knowledge in respect to the fact was, the-allegation in the complaint that the averment in the affidavit in that particular was falsely made is sufficiently supported, (Parsons v. Weis, sufra.) As frequently stated by the courts, a plaintiff who seeks to avail himself of the statutory mode for a constructive service of summons must exercise good faith in his representations to the court or judge. A presentation of a willfully false affidavit, for the purpose of obtaining an order for service of the summons by publication, is itself an act of fraud. (Dunlap v. Steere, supra.) The practice in making affidavits for such purpose in the mere language of the statute, and the lack of scrutiny on the part of clerks in issuing 6 orders for publication upon them, and upon a total want of probative or evidentiary facts, and in directing the publication to be made, not as required by the statute, “in a newspaper to be designated by him as most likely,” but in somle periodical least likely to give notice to the person to be served, is entirely too loose. In the ease of Ricketson v. Richardson, supra, the court again well said: “Where this kind of service is sought, the proceedings should he carefully scrutinized, and strict compliance with every condition of the law exacted; otherwise its provisions may lead to gross abuse, and the rights of persons and property made to depend upon the elastic consciences of interested parties, rather than the enlightened judgment of a court or judge.” Regardless of the defective affidavit for the publication of the summons, the plaintiff, under the statute, had one year — 255 — from the entry of the judgment against him to appear, have it vacated, and plead to the merits. Because of the negotiations between him and the defendant, and of the statements made by the defendant before the year had expired that, notwithstanding the judgment, he nevertheless would give plaintiff a quitclaim deed on just and reasonable terms, and would “do what is right,” the plaintiff was disarmed 7 and lulled into a false security; and then, when the year had expired, the defendant changed his position, and asserted to the plaintiff “there is absolutely no reason why you need be considered, except as courtesy.” Such duplicity alone was sufficient to justify a setting aside of the judgment, and to permit the plaintiff to plead to the merits. The judgment of the court below, therefore, is reversed, and the cause remanded to the trial court, with directions to reinstate the complaint, to annul and set aside the former judgment obtained by the defendant against the plaintiff, quieting the title of the property in the defendant, to permit the plaintiff to plead to the merits, and to hear, determine, and adjudge whether the plaintiff or the defendant is the owner or entitled to the possession of the property, and to quiet the title in him who may be so found and adjudged to be the owner and entitled to the possession. Costs to appellant. IBICE:, C. L, and McCABTY, L, concur.