State Ex Rel. Miller v. District Court of Seventh District , 120 Mont. 423 ( 1947 )

Original proceeding. Relator Henry A. Miller petitions this court for a writ of supervisory control directing the respondent court and judge to show cause why an order quashing and vacating the summons in Cause No. 5316 should not be annulled.

The action was brought in the district court of Richland county, Montana, by relator as plaintiff against the defendant George Chapel to enforce the specific performance of an alleged contract to convey certain described real estate situate in said county. At the commencement of the suit the defendant was not then nor is he now within the state of Montana but being then and now an inhabitant of and within the state of Minnesota. Service of summons was attempted to be made by publication and defendant through counsel appeared specially and challenged the jurisdiction of the court, whereupon the district court ordered the summons and service quashed and set aside on the ground that the action is in personam requiring personal service upon defendant. To an alternative writ issued by this court respondents have interposed a motion to quash and to dismiss the proceedings, thus challenging the correctness of the order made by the district court.

In the well considered case of Silver Camp Mining Co. v.[1-3] Dickert, 31 Mont. 488, 78 P. 967, 67 L.R.A. 940, 3 Ann. Cas. 1000, decided December 24, 1904, this court held that in the absence of elements establishing a trust in favor of the plaintiff with respect to land in this state, a suit for specific performance of a contract for the sale thereof is a suit in personam which may be brought only where the defendant resides, or may be legally served with summons; that service by publication, or service personally outside of the state wherein suit is instituted, does not confer jurisdiction upon the court to render judgment against a defendant who appears specially to challenge the jurisdiction of the court and that section 637 of the Montana Code of Civil Procedure of 1895, now sec. 9117, Rev. Codes, providing for the publication of summons has no application to actions in personam but is confined to actions in rem.

Section 9117, Revised Codes of 1935, 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 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, and that he 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.The provisions of this section shall apply to all actions andproceedings in which personal service of summons is not requiredto be made in order to obtain relief, including every action orproceeding commenced in any district court of this state toenforce any legal or equitable lien upon, or claim to, or toremove any encumbrance, or lien, or cloud, upon the title of realor personal property within this state." (Emphasis supplied.)

The italicized portion of the above statute was added to section 637, Montana Code of Civil Procedure of 1895, by the enactment of Chapter 36 of the Laws of 1907.

In Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959, cited with[4] approval by this court in Burke v. Inter-State Savings and Loan Association, 25 Mont. 315, 64 P. 879, 87 Am. St. Rep. 416, the court said: "When, * * * by legislation of a state, constructive service of process by publication is substituted in place of personal citation, and the court upon such service is authorized to proceed against the person of an absent party, not a citizen of the State nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions."

In Holt v. Sather, 81 Mont. 442, 264 P. 108, 111, this court said: "It is the settled judicial policy of this state that more accurate observance, with regard to compliance with provisions of the statutes, is required in constructive service than in personal service; also that less presumption in favor of jurisdiction of a court, upon rendition of judgment, is indulged in when the judgment is based upon constructive service than when based upon personal service."

Relator urges that the amendment of 1907, by including within its provisions actions to enforce a "claim to * * * real * * * property within this state," sec. 9117, permits service of summons to be made by publication in actions such as this to enforce specific performance of a contract to convey real estate, but such contention finds no support in either the decisions of this court nor in those of the federal courts construing like statutory provisions.

The federal statute providing for service by publication upon absent defendants in certain designated actions contains the same language employed in the 1907 amendment to section 637 of the Montana Code of Civil procedure of 1895 sec. 9117, Rev. Codes of Montana 1935, and provides for such substituted service when the action is brought "to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district * * * one or more of the defendants therein shall not be an inhabitant of or found within the said district * * *." Section 8 of the Act of Congress of March 3, 1875, Ch. 137, 18 Stat. 472, sec. 738, Rev. Stat., 28 U.S.C.A. sec. 118.

In construing the foregoing federal statute in Ladew v. Tennessee Copper Co., C.C., 179 F. 245, 251, affirmed218 U.S. 357, 31 S. Ct. 81, 54 L. Ed. 1069, the court said that, "it appears from the concluding portion of this section that it relates entirely to suits of which property is the ``subject,' and as the words ``claim to * * * property' are evidently used in contrast to liens or encumbrances upon property and are the only words in the section under which a claim to the direct ownership of property may be included, these words relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest, or other direct right or claim to the property itself, such, for example, as the claim of ownership of an undivided interest in the property upon which a suit for partition may be based (Greeley v. Lowe, 155 U.S. 58-74,15 S. Ct. 24, 39 L. Ed. 69), and do not include the assertion of a right which is not based upon an interest in the property itself, * * *."

Municipal Inv. Co. v. Gardiner, CC., 62 F. 954, holds that a suit to enforce the specific performance of a contract to convey land is an action in personam wherein the above federal statute does not authorize substituted service by publication of summons. This case was followed in Dan Cohen Realty Co. v. National Savings Trust Co., 6 Cir., 125 F.2d 288. See also Kansas Gas Electric Co. v. Wichita National Gas Co., 8 Cir., 266 F. 614; Vidal v. South American Securities Co., 2 Cir., 276 F. 855.

In Thrift v. Thrift, 54 Mont. 463, 171 P. 272, decided[5] February 27, 1918, this court held that it is now well settled that in an action in personam decree cannot be rendered upon substituted service alone. Citing Silver Camp Mining Co. v. Dickert, supra, and Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565.

In Winnett Times Pub. Co. v. Berg, 82 Mont. 141, 265 P. 710,[6] 711, decided March 27, 1925, the plaintiff, charging fraud, brought suit to compel the defendant to surrender for cancellation certain notes executed by plaintiff to defendant in part payment of a printing plant and equipment located at Winnett, Montana, the notes being secured by a chattel mortgage on the property. Service of summons was made upon the defendant by publication. Failing to appear defendant's default was entered and judgment rendered against him. In reversing the judgment this court held that the action was in personam; that substituted service of summons did not give the court jurisdiction to enter the judgment and that section 9117, Revised Codes, "does not abrogate the rule of the common law which requires personal service of the summons in action in personam." See also Gassert v. Strong, 38 Mont. 18, 98 P. 497; Hinderager v. MacGinniss, 61 Mont. 312, 202 P. 200; State ex rel. Kelly v. District Court, 73 Mont. 84, 235 P. 751; Atlantic Seaboard Natural Gas Co. v. Whitten, 315 Pa. 529, 173 A. 305,93 A.L.R. 615; 42 Am. Jur., "Process," pages 63-78, sections 75-88.

A careful examination of the cases cited by relator as holding that service may be made by publication in actions for specific performance of a contract to convey real property reveals that such decisions were based upon statutes containing quite different language from that employed in our statute, hence they do not aid us in construing the provisions of section 9117, Revised Codes of Montana, 1935.

In our opinion the view of the law announced by this court in Silver Camp Mining Co. v. Dickert, supra, and approved and followed almost a quarter of a century later in Winnett Times Pub. Co. v. Berg, supra, is sound and "in consonance with reason and the general practice which has heretofore prevailed throughout this country." 31 Mont. at page 501, 78 P. at page 971, 67 L.R.A. 940, 3 Ann. Cas. 1000.

The respondent district court has acquired no jurisdiction over the person of relator and it properly ordered the attempted service of summons by publication quashed and set aside. Acordingly, the peremptory writ applied for is denied, the alternative writ is quashed and the proceedings ordered dismissed.

Associate Justices Choate and Gibson, concur.